Geoffrey Lowe here with another Rudner Law video employment law update.
Last week, the Ontario Legislature tabled Bill 88, the Working for Workers Act, 2022, which has now passed its first reading and been sent to committee for review. If enacted, the proposed Bill 88 will change several acts, including the employment standards act and the occupational health and safety act. Bill 88 would also establish the Digital Platform Workers Rights Act 2022 which creates rights for digital workers, more commonly known as gig workers.
Let’s quickly break down a couple of these changes and the impact they may have on the employment law landscape if and when Bill 88 is enacted.
Under Bill 88, the Employment Standards Act (ESA) will now require an employer with more than 25 employees to have a written policy regarding electronic monitoring of employees. This policy must advise whether the employer electronically monitors its employees and if so, the circumstances of when this monitoring takes place, and the purpose for which the employer is gathering this information. Courts have repeatedly affirmed that employees have a common law right to privacy and this privacy may be infringed upon only where there is a purpose to do so – and this infringement must be as minimal as possible. The proposed change to the ESA codifies and follows the common law regarding an individual’s right to privacy. From a societal perspective, legislation like this was long overdue and like everything else, may have been sped up by the reaction to the pandemic. Given the amount of digital solutions to the remote work environment this was to be expected and may be a welcome update for employee privacy.
What is not included in Bill 88 is a list of acceptable circumstances or reasons for the employer to gather this information – or what use this information can be put to once obtained – this may be coming through regulation or policy directives.
The other significant change pending through Bill 88 is the creation of the Digital Platform Workers Rights Act. This Act would establish rights for individuals working on or through a digital platform – think Uber or DoorDash. This is the first piece of legislation we have seen in Ontario directed specifically at gig workers. This Act creates a number of rights for individuals working with these platforms. Like the ESA, it includes a provision which prevents contracting out unless a greater right or benefit is being provided above the rights in the Act. Also like the ESA, it establishes a minimum wage for individuals covered under it. However, unlike the ESA, this minimum wage applies only to the time an individual spends on each work assignment as defined in the Act. The minimum wage requirement does not apply for times between these work assignments. This means that the individual does not earn anything while awaiting their next task, fare, or delivery – unlike the ESA, where an employee is entitled to pay for all time where work is being carried out or they are waiting to work. The Act sets out the basic information that the digital platform must provide the individual within 24 hours of becoming active on the digital platform as well as the information that the platform must provide for each new work assignment and upon completion of each work assignment.
In short, the Act sets up baseline rights for gig employees which did not exist before.
The most interesting part of this from an employment lawyer’s perspective is the termination provision it includes.
Section 11 of the Act requires the digital platform to provide two weeks notice of its intention to remove an individual’s access to the platform for more than 24 hours. Unlike the termination provisions in the ESA, this is capped at a maximum of two weeks no matter how long the individual was working with the digital platform. This also requires a reason be provided, in writing, for why the individual’s access was cut off. The Act includes an exception to this requirement where the individual has been guilty of wilful misconduct or something similar. Like most pieces of tabled legislation this Act creates as many questions as it answers. For example, will there be scrutiny as to what type of reason to terminate access is legitimate? Will an employee whose access is terminated have any recourse within the legal system, beyond this statute? If so, on what basis? Is this provision actually a termination right or is it just something regarding deplatforming?
There is also a larger perspective issue. Whether a gig employee is actually a dependent contractor for purposes of the common law is currently before the court – how this new statute will interact with the outcome of these cases is not clear.
It seems that time will tell – further clarification from the legislature may be forthcoming and the act may be changed from its current form. Barring that we can guarantee that we will see clarification from court and tribunal review of this act once it becomes law.
That’s all for today, thanks for tuning in. Please monitor our blogs for further updates on Bill 88 and its passage as these become available.