THE GIG JUST GOT MORE COMPLICATED IN BC – Bill 48 to treat Online Platform Workers as Employees for purposes of Employment Standards and Workers Compensation

On November 20, 2023, the BC Minister of Labour introduced Bill 48: Labour Statutes Amendment Act, 2023 which proposes the addition of “online platform worker” to the Employment Standards Act and the Workers Compensation Act. Online platform worker means a person who performs prescribed work that the person accepts through an online platform such as app-based ride hailing and food delivery gig workers.

These workers will be considered employees for the purposes of the Employment Standards Act and the Workers Compensation Act, whether they are employees or independent contractors. A set of applicable employment standards will be established – see below for the proposed employment standards. As well, the safety obligations contained in the Workers Compensation Act will apply to the app-based gig workers and such workers will be entitled to access workers compensation coverage if injured on the job – see details below.

The Provincial Government estimates that there are currently 11,000 ride-hailing drivers and 27,000 food delivery workers in BC. There are 21 ride-hailing companies licensed to operate in BC, including multi-national companies such as Uber and Lyft, and locally operated companies such as Coastal Rides and Whistle!. There are 7 food delivery platforms operating in BC, including Uber Eats, Instacart, SkiptheDishes, Doordash and Fantuan.

The proposed employment standards which will apply to these workers are set out in a Ministry of Labour Backgrounder as follows:

1. Proposed employment standards, protections for ride-hailing, food-delivery workers

Minimum wage:

• Establish a minimum earnings standard of 120% of B.C.’s general minimum wage (currently $16.75) and apply it to engaged time.
  • Engaged time begins when a worker accepts an assignment through its completion.
  • Engaged time does not include the time spent waiting between assignments. This is the rationale for adding a 20% premium.
• Platform companies will top up the difference when the earnings paid in a pay period do not meet the minimum earnings standard for the engaged time worked.
• Tips are not included in the minimum earnings calculation.

Expenses:

• Establish an additional compensation standard to recognize the costs that workers incur when using a personal vehicle for work.
• The Ministry of Labour will be consulting with workers, platform companies and others to determine an appropriate compensation standard.

Tip protections:

• Prohibit platform companies from withholding tips or making deductions from tips.

Pay transparency:

• Ensure that when platform companies offer an assignment to a worker, that worker can see the earnings for completing the assignment.
• Platform companies will also be required to provide workers with wage statements every pay period so workers can ensure they are paid correctly.

Destination transparency:

• Platform companies will be required to provide all pickup and delivery locations for each assignment.
• This will allow workers to assess the desirability and safety of assignments before accepting them.

Suspensions and terminations:

• Platform companies will be required to inform a worker in writing of the reason for a suspension or deactivation of their account.
• Platform companies must also provide a review process that allows workers to present their side and supporting evidence.
  • In response to a review, companies must provide a written explanation of their final decision.
• Platform companies will be required to give written notice or compensation for length of service if they want to terminate a worker’s account unless there is just cause for the termination.

Workers’ compensation coverage:

• Workers’ compensation coverage from WorkSafeBC will be extended to ride-hailing and food-delivery workers.
• Workers will be eligible for workers’ compensation benefits, including vocational rehabilitation services, for work-related injuries.
• Platform companies will be responsible for:
  • registering for coverage with WorkSafeBC and paying premiums;
  • following health and safety rules to keep workers safe;
  • reporting injuries and diseases; and
  • investigating significant incidents.

Intended legislative approach

Amendments will be made to the Employment Standards Act (ESA) and the Workers Compensation Act (WCA) to define online platform workers and to ensure that ride-hail and food-delivery workers will be considered employees, specifically for the purposes of the ESA and WCA. The protections and standards described above will then apply to all workers in the industry regardless of whether they are employees or independent contractors under any law.

To protect the flexibility that workers value and address their top priorities, alternate standards for this industry will be created within the ESA while some of the Act’s existing provisions will not apply at this time.

Standards in the following areas will not be established at this time under the ESA for ride-hailing and food-delivery workers, but government will continue to monitor these areas:

• hours of work and overtime;
• statutory holidays;
• paid leaves; and
• annual vacation.

The intended legislative approach is described above, along with a recognition of the areas that will not be regulated at this time.

We anticipate that with the Government will pass the Bill through the Legislature by November 30, and the Regulations are  expected to be finalized by early next year.

We look forward to providing you with further information as these changes proceed. In the meantime please feel free as usual to reach out to the Labour + Employment Group with questions or comments you may have at this time.