Written by David Doorey, York University
There’s news today of a North America wide “strike” by ride-share workers (Uber/Lyft, etc) to protest low wages in the industry. Some of these stories (like this one) proclaim that since ride-share drivers “are classified as contractors” they aren’t covered by employment standards laws, including the minimum wage laws. As I’ve been screaming into the wind for years now, the claim that ride-share drivers are not covered by employment standards laws is not what THE LAW says, it is what the ride-share companies claim. If I say that you are Prince it does make you Prince. You see the difference?
In fact, if you are keeping score, when the issue of whether ride-share “gig” drivers are “employees” or “independent contractors” has been raised in complaints in Ontario, the score is now 2-0 in favour of “employees”. In Foodora, the OLRB ruled that the App-based couriers were employees and in a decision called Sharma v. Uber Technologies (now under appeal before the OLRB) an Employment Standards Officer found that an Uber Eats driver was an employee for the purposes of the Employment Standards Act and entitled to the minimum wage.
So, in fact, until some legal body decides otherwise, we should assume that ride-share drivers ARE EMPLOYEES. In which case, the problem is not that the law treats them as contractors, but that the ride-share companies are engaged in systemic misclassification and serial violation of the law AND they are being permitted to get away with it because of lax enforcement.
Which leads me to this thing about a supposed “strike” by ride-share drivers. Here is a fun scenario for law students to ponder. Could probably spend at least one entire class working through the issues. What does it mean to say that ride-hail drivers are “on strike”?
Let’s begin by considering what constitutes a “strike” in Canadian law? According to our labour laws, a strike, in a nutshell, is any “concerted” refusal by employees to perform work. That is, a strike involves two or more employees who have agreed to stop working. Note that it doesn’t matter that the work the employees are refusing to perform is work that they are not legally required to perform. For example, there are cases where employees have been found to be engaged in a “strike” be refusing to perform voluntary overtime. The central question is whether two or more employees have agreed to not work.
In Canada, “strikes” by employees are always illegal if there is an employment contract in effect and they are illegal as well (even if the contract has expired) until workers (and their union) have satisfied a series of legal prerequisites to a “lawful strike”. We don’t need to concern ourselves about those prerequisites here (I’ve summarized them elsewhere), because there is no question that the ride-share drivers have NOT satisfied them. For one thing, in Canada (and in contrast to the US), only “unionized” employees represented by a majority/exclusive union can lawfully strike and Uber drivers are not unionized. So, Uber drivers are NOT in a “lawful strike position” within the meaning of Labour Law. Labour relations legislation does not assist ride-share drivers at all in their fight to pressure the companies for improved working conditions (at least not until those drivers join a union that is certified by a labour board as the exclusive bargaining representative).
But that is not the end of the law’s potential interaction with these “strikers”. And here I am discussing the Uber “strike” as a hypothetical case study, because I don’t actually know what is going on. Treat what follows as a sort of law school class scenario for discussion. A hypothetical. If anyone has researched or thought about these issues “in reality” I’d love to hear your thoughts either by posting a comment or via email.
A quirk in the Uber story is that drivers are not required by their contract with Uber to turn on the App at all (at least I think that is the case, if it is not, then please let me know). If that is the case, then the situation seems analogous to a group of workers who do not have an employment contract with Company X holding out (refusing to accept employment) for a better offer from Company X. In that scenario, Labour Law doesn’t really apply at all, since there are no “employees” involved. A “strike” is a collective refusal to work “by employees”.
A collective refusal to work by non-employees, however, may still raise issues in the common law of tort (conspiracy, unlawful interference with contractual relations, for example) and competition law.
Maybe what we mean by a “strike” by Uber drivers (a concerted decision to not turn on the App or not accept rides) is, legally speaking, a decision by a group of workers to act collectively in a manner designed to put pressure on the ride-share company to change the way that the workers are paid. Put that way, it sounds like we are describing a economic conspiracy, doesn’t it? Take a look at how the Competition Act describes an unlawful conspiracy:
While Labour Law may not apply to a bunch of non-unionized workers or “independent contractors” who “strike” [agree collectively to not perform work for Company X], Competition Law might apply. Can an agreement by a bunch of Uber drivers (who can be characterized as competitors of one another in the gig-economy] to refuse to perform services meet the definition of a conspiracy in the Competition Act? What about civil conspiracy?
Keep in mind that the act of unionizing and pressuring employers in collective bargaining through striking or the threat of striking is a conspiracy. For many years, strikers and organizers of strikers were fired, arrested, or sued for participating in strikes. Legislation eventually loosened the grip of conspiracies relating to legitimate collective bargaining. For example, labour laws created a path for lawful strikes, but only by unionized employees. The Competition Act creates an exception to conspiracy for “combinations or activities of workmen or employees for their own reasonable protection.” And in Ontario, the Rights of Labour Act states that “an act by two or more members of a trade union, if done in contemplation or furtherance of a trade dispute, is not actionable unless the act would be actionable if done without any agreement or combination”.
Where does all this leave us?
One way to think about the situation is to ask what Uber (and Lyft, etc) could do to stop the “strike”, such as it is, if they wanted to. Imagine that a huge percentage of drivers participate in the strike to such a degree that it begins to inflict serious economic damage on the companies (which is doubtful).
An obvious response would be to cut-off the drivers who participated in the “strike”, if the companies know who they are. This the equivalent of an employer terminating an employee for participating in an unlawful strike. Can you think of any legal rule that would prevent the companies from doing that?
Or, maybe the companies rush the Labour Board arguing that this is an unlawful strike? I doubt they would do this though, since their argument is that none of the drivers are “employees” and that the drivers are in any event free to log on or not log on. Therefore, I doubt the companies would seek relief from a labour board, which is responsible to police “employees” who engage in unlawful trade union activities.
That would leave the companies to head to courts arguing that the drivers are engaged in civil conspiracy or to bring complaints under Competition legislation alleging statutory conspiracy. Maybe the companies seek an injunction to stop the unlawful conspiracy or damages for economic harm suffered (if they can prove any such damages).
In reality, it is unlikely that companies will take any action at all given that a “strike” is unlikely to do much economic damage. I throw all of this out there to demonstrate the uneasy fit between “gig” work and existing legal infrastructure in Canada today. There are good reasons why the law should support a right of ride-share workers to engage in collective action to improve their working conditions. However, existing law is not set up to facility this sort of worker action. For a strike of ride-share drivers to have any real impact in changing work practices in the industry, I believe we need to design a better legal model, one that was not designed to regulate collective bargaining at steel mills and car factories.