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Employment & Labour

Uber drivers claim they are employees

A provincial review of workplace laws could overtake a class-action lawsuit by Canadian Uber drivers who want the company to recognize them as employees, says Toronto employment lawyer Kumail Karimjee.

The recently filed proposed class action is the latest in a series of suits brought in various jurisdictions alleging Uber drivers are employees, rather than independent contractors, as the ride-sharing company currently categorizes them.

It comes as the Ontario government is in the midst of a review of the Employment Standards Act (ESA) and the Labour Relations Act that was mandated to study the challenges faced by workers in precarious jobs.

“It’s a very interesting lawsuit, but it might be superseded by legislative change. The provincial government is very alive to the fact that working relationships are changing with the rise of the so-called ‘gig economy,’” Karimjee tells AdvocateDaily.com. “I think there will be legislative reforms that will seek to address precisely this sort of situation. Rather than changing the definition of an employee as it currently exists under the ESA, it’s possible that the law will evolve and be amended to reflect this new category.”

Karimjee, a founding partner at employment law boutique Karimjee Greene LLP, says employers are typically the driving force behind agreements that characterize workers as independent contractors. If workers can show they are actually employees, it opens up a whole set of entitlements and protections under the ESA, including vacation pay, overtime, termination and severance pay.  

“Employers also have a number of obligations to employees that they don’t owe to independent contractors, which include making CPP and EI contributions,” Karimjee says.

Aside from statutory entitlements, Karimjee says independent contractors have found some success in court when arguing for common law notice on termination.

“The distinction is less significant in those cases because the law has evolved to recognize that there is more of a continuum between pure employees at one end of the scale, and pure independent contractors at the other end, so that contractors are often found to be entitled to some sort of reasonable notice,” he says.   

In the Uber case, a Financial Post report says the drivers claim they are subject to mandatory inspections and receive pay from the company at regular intervals.

“The duties performed by the class members and the supervision and control imposed on the class members by Uber creates an employment relationship with Uber,” reports the paper, quoting the statement of claim.

Karimjee says the court has a number of tests it can apply to determine the status of the company’s workers. Factors such as the control and direction exercised by the company over the worker’s hours, the ownership of work tools, and the regularity of pay will all need to be taken into consideration.

“Effectively, the ultimate question to be answered is whether or not the person can be said to be running their own business,” Karimjee explains.

He says the drivers may get a boost to their case from existing case law at the Ontario Labour Relations Board (OLRB), where members of the board have ruled in some cases that taxi drivers and couriers were employees, and not independent contractors. 

“The OLRB has held that the ESA should be interpreted liberally so as to bring as many people as possible under the act’s protection,” Karimjee says. “I think a good argument can be made for the Uber drivers with the law as it currently stands.”

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