THE EMPLOYERS' EDGE
UBER’S FLEXIBLE WORK+ PROGRAM: INNOVATIVE IDEA OR DECEPTIVE DESIGN?
The saga between new-aged delivery drivers and their app-based governing bodies continues, now in the form of Uber’s new Flexible Work+ program. Uber Technologies Inc., a San Francisco-based company, is pressing for Canada’s Provinces to enshrine its new program into law. Uber claims this “new proposal would help drivers and delivery people who earn through the app-based work receive new benefits and protections – while still keeping the flexibility they value.”
Some critics, however, claim that this new proposal is nothing more than a shiny rhetoric built to deny its driver’s their legal rights.
What is Uber’s Flexible Work+ Program?
On the heels of recent legal defeats outside of Canada where other jurisdictions have labeled Uber drivers as employees rather than independent contractors, and with pending case law in Canada which could set a similar precedent, Uber is seeking change.
Currently, Uber workers in Canada are classified as independent contractors — meaning they decide when to work and what work to do. However, this “flexibility” comes with enormous costs. In Ontario, for example, these contractors have no legal right to a minimum wage, sick days, collective bargaining rights, or paid breaks.
With its proposed Flexible Work+ program, Uber is asking the Canadian government to require their industry to provide:
- Self-directed benefits based on hours worked, allowing drivers and delivery people to withdraw cash for the benefits they want to fund. Items like dental or vision care, RRSPs, or tuition and education expenses.
- Enhanced worker protections through additional training and tools to help keep workers safe and protected while driving and delivering.
Uber is asking for these changes to be made industry-wide so that every person that signs up with a platform company should be able to get the same benefits and protections, no matter the company, and count on the same set of rules to hold these companies accountable.
Are These Proposed Changes Really Driver-Focused?
Critics of the new program suggest that it is nothing more than Uber’s attempt to prevent employees from getting the benefits they deserve.
Under the new program, Uber drivers would still arguably be prevented from some entitlements under Ontario’s Employment Standards Act, 2000 (ESA). For example, the new program does not mention minimum wage. Ontario’s current minimum wage sits at $14/hour, while some Uber couriers claim they are only paid anywhere from $8/hour to $12/hour.
Further, critics claim that under the new program Uber drivers would be excluded from Canada Pension Plan contributions, Employment Insurance eligibility, overtime, and vacation pay.
Uber’s proposed plan may be a last-ditch effort to prevent their drivers from being classified as employees. In addition to the rights and benefits under the ESA, employees have a right to unionize – something that independent contractors do not have. A union among app-based drivers would have catastrophic consequences to Uber’s profitability.
This is something that Uber is well aware of. The “Risk Factors” section of Uber’s S-1 filing from the Securities and Exchange Commission from 2019 lists that their “business would be adversely affected if Drivers were classified as employees instead of independent contractors”, and risks of conducting business internationally include “difficulties in managing, growing, and staffing international operations, including in countries in which foreign employees may become part of labor unions”.
The Bottom Line
It comes as no surprise that Uber is attempting to design clever ways to support their growing business and keep their workers happy. Although this new program presents some obstacles in achieving the latter.
If Canada’s legislature decides not to intervene, the fate of app-based delivery drivers in Canada may rest on the shoulders of the pending decision in Uber v Heller which will likely decide whether these drivers are employees, independent contractors, or some other classification. All we can be certain of right now is that popular app-based delivery services are likely to see future legal transformation – one way or another.
Contact the legal experts at CCPartners if your business needs to understand whether your workers are employees or independent contractors.