Taking the Gig Out of Work - Metcalf Foundation

Illustration: The Local StoryLab

Taking the Gig Out of Work

2023

When the pandemic hit, Deel decided to start delivering groceries to supplement the food delivery she was already doing. While unloading a Costco order during a winter storm in 2020, she slipped on black ice, sending a box skittering across the sidewalk. The customer watched her at the door, not offering to help. She apologized profusely, even though the goods were packaged and there was minimal damage, but the customer still left a negative review—bad enough for Deel to receive a notification that her overall rating had dipped.

She panicked: she knew a lower rating meant she was likely to see fewer orders, since contractors with the highest ratings get to choose the more lucrative jobs first, leaving behind the ones that pay poorly or are more difficult. Deel reached out to the app’s support team to explain what had happened, but there was no recourse for her to get the review scrubbed.

The incident also demonstrated the increasing physical toll of the job. Petite and in her mid-twenties, Deel knows she’s carrying heavier loads than she should. “When I get older I’m going to see the effects on my body of what I’m doing now, but it’s not my choice,” she says.

Trained as a civil engineer, Deel couldn’t find a job in her field when she moved to Canada from Syria through the U.S. in 2019. Most of the time, she didn’t even receive a response to her job applications; when she did, it was a flat-out rejection, citing her lack of “Canadian experience.” She couldn’t keep going without an income, so two months after she immigrated, she started delivery work through apps like DoorDash and Skip the Dishes. This meant Deel became an independent contractor, according to the terms laid out by those companies.

She delivers by car, so soaring gas prices have cut into her pay, and she’s unable to afford the commercial insurance technically required for the job. Not only does Deel take on all the costs of delivery, she takes on the risks — to her health, made especially harrowing by COVID, because she wasn’t covered by OHIP, and to her personal safety, due to constant inappropriate behaviour from male customers, who comment on her appearance and ask for her number. Nor can she count on pay for vacation and public holidays, parental leave, disability pay, and termination notice — as an independent contractor, she isn’t covered under Ontario’s Employment Standards Act, the law that mandates those sorts of protections.

The rise of platform work has put a spotlight on gig work, but people running trips and deliveries for companies like Uber don’t comprise the entirety of the gig economy, which is made up of anyone engaged in what Statistics Canada calls “less structured and non-traditional work arrangements.” More specifically, gig workers are defined as those who aren’t employed long-term by a single organization: they’re typically unincorporated individuals paid to complete a discrete task or work for a limited time. Consultants, designers, artists, and tradespeople can all fall under this category — in fact, before the pandemic, when numbers were last available, one in 10 working Canadians were part of the gig economy.

When I get older I’m going to see the effects on my body of what I’m doing now. But it’s not my choice.

For employers, the advantage of “non-traditional work arrangements” is clear: they take on less responsibility for the worker, and aren’t bound by the same obligations in labour law as they are for those considered employees. For workers, the benefits are fuzzier. In addition to their lack of protections and benefits, these arrangements can leave vulnerable workers open to exploitation. “Platform work is the latest iteration of workers being pushed out of traditional employment,” says Deena Ladd, executive director of the Workers Action Centre, citing domestic workers and office cleaners as earlier examples. “So many racialized workers, newcomers, and people who have very little power in the workplace have been doing this type of work for decades.”

There’s a familiar trade-off that companies such as Uber like to trot out: while workers outside a traditional employment model take on more risk, they gain flexibility in both where they work and when, which is particularly appealing for those with children or eldercare responsibilities. But Brice Sopher, who delivers for UberEats and advocates for platform workers like himself as the vice-president of Gig Workers United, is unpersuaded by that argument. “It’s false — it’s just an invention.”

He points to his own schedule. Sopher can in theory choose his hours, but in practice, to make a living wage, he has to work during peak hours: midday for lunch and through the evening for dinner, when the orders roll in. He can choose among the orders sent to him through the app, but he can’t choose what to charge, and if he cancels an order, he may be penalized for it. As a DJ, he often negotiates the terms of his contract before signing on to a job. With Uber, he’s sent an updated contract every few months: he either signs it and continues working with the company, or he doesn’t and he stops. “How is that fair? How is that independence and how is that flexible?” Sopher asks.

Digital-platform companies might emphasize Canada’s record-high job vacancy rates as proof that plenty of workers are no longer interested in traditional employment. The latest figures from Statistics Canada show there were more than one million job vacancies across the country — jobs that would provide more protection to employees under labour law. But part of the explanation for high vacancies can be found in the sectors in need of labour. Shortages are overwhelmingly in hospitality and care work: hard work that typically pays low wages. The median wage for a personal support worker in Ontario, for instance, is $19 an hour, while it’s minimum wage ($15.50 an hour) at the lower end. A liveable wage in Toronto is pegged at $23 an hour.

Why should these workers be less protected than other employees? They qualify as employees and they should have access to labour law.

And while many white-collar employees worked from home during the pandemic, you can’t do hospitality work remotely. That means living close to your job — an enormous challenge without subsidized housing, which had a waitlist of over 80,000 people in 2022. (Fewer than 1,000 of them were housed that year.) Otherwise, it means being able to commute into work — an equal challenge given the cost and unreliability of public transit in Toronto. The difficulty is especially pronounced for those outside the downtown core who rely on buses, a form of transport characterized by policy experts and transit advocates as grossly neglected and under-developed. “How is downtown Toronto different from Downton Abbey?” asks social policy expert John Stapleton. At least at Downton Abbey, “the working poor got to live there.”

Meanwhile, Canada’s poor record recognizing foreign credentials and experience help push newcomers like Deel — who are actively seeking full-time employment — into gig work. A 2019 Statistics Canada study that examined gig workers for the first time showed immigrants are more likely to take on gig work than Canadian-born people. Among immigrant men who had been in the country fewer than five years, 11 percent were gig workers, compared to 6 percent of their Canadian-born counterparts. (New figures won’t be available until 2023.)

Despite gig work relying heavily on newcomers, their particular issues aren’t always well understood by the platforms that employ them. Before Deel’s work permit expired in April 2020, she applied for a new one, which provided her with “implied status,” meaning she could continue to work until she received a decision on her renewal. But all three platforms Deel delivered for revoked her right to work, and she couldn’t get in touch with a human being to speak about it — she could only send emails. As the weeks passed, her bills started to collect. “I couldn’t support myself. I couldn’t pay my rent or pay for my car,” she says. “It was very hard.” Deel was only able to work again when a lawyer wrote a letter on her behalf — but that was also sent by email. (Deel received her permanent residency in July 2020.)

Deel’s inability to get anyone on the phone at any point is a symptom of a larger problem that frustrates gig workers: companies assert a high degree of control over working conditions with no corresponding accountability to the worker. When Sopher started delivering for Foodora, he found himself fielding questions from dispatchers over text about the routes he was taking — which seemed inconsistent with the label “independent contractor.” (Foodora exited Canada in 2020, citing debt, shortly after its workers won the right to unionize.) And for all their surveillance of workers, there’s little transparency in companies’ business model, Sopher says. Before accepting an order, he can only see how much it pays and an estimated tip. “Uber doesn’t tell me how much I get paid per kilometer, how much I get for time, or how orders get assigned to me,” he says.

All this makes it abundantly clear that new rules are required for new types of work. And so in April 2022, Ontario made an amendment to its Employment Standards Act. The government hailed Bill 88, known as the “Working for Workers Act,” as a step toward protecting gig workers by instituting a “floor” to how they should be treated, including ensuring these workers get paid minimum wage.

But advocates, experts in labour law, and gig workers themselves say it doesn’t achieve what the provincial government claims. Minimum wage for platform workers is only guaranteed for “engaged time” on the job, defined as the trip from the restaurant to the customer. However, a significant part of the time on a delivery job — as much as 40 percent, Sopher estimates — is spent waiting for orders to come in, biking or driving over to the restaurant, and then waiting for the food itself. None of that time is covered by the new law. It’s disheartening for Sopher to think that waiting for orders in -20 temperatures in January isn’t considered work; it sends the message that his time has no value. And it sets the precedent that an employer can determine “what counts as your work or not,” Sopher says. “It’s extremely dangerous and a rollback of workers’ rights.” Plus, it still doesn’t solve the problem of benefits, parental leave, and sick pay.

However complex the problems that gig workers face, the solution is a seemingly simple one — one that they’ve been demanding all along, and that Bill 88 notably failed to provide. Classify gig workers as employees and give them the rights and protections that come with it. “Why should these workers be less protected than other employees?” says Valerio De Stefano, a professor specializing in labour law and platform work at York’s Osgoode Law School. “They qualify as employees and they should have access to labour law.”

How is downtown Toronto different from Downton Abbey?… [At least at Downton Abbey] the working poor got to live there.

Gig workers have had some recent success appealing for these rights before the labour board. A month before Bill 88 came into effect, the Ontario Labour Relations Board decided in favour of an UberEats bike courier, ruling that — given the degree of control Uber had over his work — Saurabh Sharma was not an independent contractor but an employee entitled to minimum wage, and that his paid time should include the hours spent waiting for work. Sharma received $1,000 in clawed-back pay. It’s still possible under the new legislation for gig workers to make similar claims to the labour board, Ladd notes, although the burden is on them to prove they’re being treated as employees.

Other jurisdictions, however, have reversed this burden of proof. Lawmakers in the European Union laid out a proposal in 2021 that included the legal “presumption of employment” for platform workers, an approach that could be considered in Ontario, says De Stefano. The proposal’s goal is three-fold: to prevent misclassification of employees, ensure transparency and accountability in how algorithms manage work, and improve enforcement of labour laws. Once the EU adopts it, member states have two years to usher in the law in their own countries.

In October 2022, the US Department of Labour introduced a proposal of its own that, while not going as far as the EU, will require companies like Uber and Lyft to determine whether a worker is an independent contractor by looking at how integral their role is to the company’s business. It will also require that employers determine classification based on five criteria, including the skill required for the role and how permanent the job is.

Canadian labour laws largely haven’t yet addressed the realities that gig workers face, including what advocates say represent an erosion of workers’ rights. For Sopher, this erosion impacts more than just gig workers — it’s a trend that could affect all workers, from tech employees who see their roles outsourced to contract workers to in-house delivery drivers who lose out to third-party app-based drivers. The motivation for employers is obvious: their bottom line. “Why wouldn’t an employer pay their workers less and have fewer obligations?” Sopher says. “It’s a win-win for your employer — why wouldn’t they do it?”

This story is part of a special series focused on the issues the Metcalf Foundation’s Inclusive Local Economies program has supported over the last 10 years.

Read the next story: Rebuilding the Hospitality Business — Again