Gig economy no more? British Columbia extends significant protections to app-based gig workers ‎

The way we work has changed, and no innovation has been more disruptive than the advent of the “gig economy”. Borrowed from the experience of musicians who book short-term engagements (“gigs”), the gig economy has historically relied on the work of independent contractors or freelancers and not employees. And, while such independent contractors benefit greatly from the flexibility and independence associated with gig work, heavy reliance on gig workers has led many workers-rights advocates to question whether gig workers should be entitled to the same or similar protections afforded to employees.

The British Columbia government has responded to these issues with recent, and significant, amendments to both the Employment Standards Act and Workers Compensation Act which, when brought into force, will extend protections historically limited to employees to certain gig workers.

In particular, certain online platform (i.e. “app-based”) gig workers in prescribed industries will be employees for the purposes of the Employment Standards Act and the Workers Compensation Act regardless of their classification as independent contractors by the company engaging them. The BC government expects to establish a set of minimum employment standards to “bring fairness and predictability to these types of jobs”. Proposed standards include:

• A minimum earnings standard of 120 percent of BC’s current minimum wage, applicable from the time a worker accepts an assignment through its completion, but not applicable to the period of time between assignments, excluding tips.
• A requirement to “top up” any difference between the earnings actually earned by a worker in a pay period and the minimum earnings standard.
• A requirement to provide wage statements every pay period.
• A compensation standard to recognize the costs incurred by workers when using a personal vehicle for work.
• Prohibitions against withholding tips or making deductions from tips.
• Pay transparency and delivery/pick up transparency at the time an assignment is offered.
• A requirement to provide a written rationale for suspensions or deactivations, and to implement a review process before any final decisions are made.
• A requirement to provide notice or compensation for length of service in the event of termination of an account unless there is just cause.

Consistent with the flexibility that most app-based gig workers enjoy, prescribed standards are not anticipated in respect of hours of work and overtime, statutory holidays, paid leaves or annual vacation, although the BC government will continue to monitor these issues.

Online platform companies are also expected to be required to register for WorkSafeBC coverage and pay premiums in respect of affected gig workers, follow health and safety rules, report injuries and occupational diseases, and investigate significant incidents.

The industries to which these changes will apply will be prescribed in regulations which have not yet been released, however, it is expected that ride-hailing and food-delivery drivers will be granted this new status once the relevant provisions of the Labour Statutes Amendment Act, 2023 will come into force by Order in Council. The BC government apparently intends to give affected companies an opportunity to update their technology to implement the new requirements.

The Labour Statutes Amendment Act, 2023 received Royal Assent on November 30, 2023 and the relevant provisions will come into effect at a later date as determined by the Lieutenant Governor in Council. The Government News Release can be accessed here and here.

For further information, please contact any of the member of the DLA Piper ‎Canadian Employment and Labour Law Service Group listed here.‎