George Waggott
George Waggott Law, Toronto, Ontario
george@georgewaggott.com

Ontario’s provincial government introduced the Digital Platform Workers Rights Act 2022 (DPWRA), on 28 February 2022. This announcement, which was made by the conservative government in the context of their successful re-election campaign, is part of a series of announcements which are perceived to be pro-worker.

The DPWRA will, if passed, create new entitlements for workers who provide services to ‘digital platforms’. This includes individuals, many of whom are currently engaged as contractors, who provide rideshare, delivery and other ‘on-demand’ services. The key point for the purposes of the new rules is that a worker who has a right to accept or decline work via a digital platform will be able to take advantage of the protections afforded by the DPWRA.

The new rights which the DPWRA would introduce include the following:

• a guaranteed minimum wage for hours spent working;
• protection of the right to be paid or receive credit for tips;
• a requirement to receive information about how pay is calculated;
• written notice of ‘removal’, which applies if access to the platform is removed;
• receipt of two weeks’ written notice if removed from the platform for 24 hours or more;
• regular payment cycles, such as those applicable to employees; and
• protection from reprisals and a right to dispute resolution.

The changes and the proposed adoption of the DPWRA follows the release in late 2021 of a report from an Ontario special Workforce Recovery Advisory Committee. This group’s report included recommendations that there be more transparent rules about how digital platform workers are paid for, assigned to and removed from work opportunities.

The legal regime which the DWPRA would create involves a parallel arrangement to what currently exists under the Ontario Employment Standards Act 2000 (ESA). Critics of the new rules have noted that the rules which would apply to digital platform workers amount to ‘ESA-lite’ protections, since not all of the requirements applicable to employees would be in place. As an example, the DPWRA would require the minimum wage as established under the ESA to be paid for all work assignments actually performed by the digital platform worker. In other words, the payment is for when the worker is driving or doing the task they are dispatched to do. This contrasts with the approach under the ESA, which can contemplate payment for being ‘on call’ and also contains minimum requirements for payment to employees, who generally must be paid for three hours once they commence work.

A strong focus of the DPWRA is on greater information about the specific arrangement and payment. Operators of digital platforms would be prohibited from making unauthorised deductions from earnings, which include tips and gratuities. There would also be a requirement to provide a statement which sets out how much the worker earned, and how this has been calculated.

The new rules under the DPWRA will require operators to closely review how they run their platforms and assign work. When work is offered, it will be a requirement to provide an estimated amount for the assignment, together with some information about how payment will be calculated. The worker will also have the right to be informed about how work is offered, and whether or not there will be adverse consequences based on a refusal to accept assignments. Platforms will also be obligated to explain how, if at all, they will address workers who receive negative ratings from customers.

Additionally, the DPWRA will prohibit platform operators from ‘cutting off’ workers without following a proper process. The new rules will require a written explanation which sets out the reasons for removal from access to the platform. In addition, if the platform access is removed for more than 24 hours, that essentially will be treated like a termination, with operators being required to provide two weeks’ notice of the removal. There will be an exception, similar to that found in the ESA, for workers who have engaged in wilful misconduct.

If adopted, the DPWRA will also grant protections to digital platform workers against reprisals. In particular, operators will be prohibited from threatening, intimidating or penalising a worker because they inquire about or seek to exercise their rights under the legislation.

The DPWRA will also require that all related disputes between workers and operators be resolved in Ontario. This change is almost certainly a direct response to a high-profile case where Uber’s Canadian business attempted to insist upon arbitration in the Netherlands.

Key points for organisations

The DPWRA will materially change the legal landscape for workers in Ontario, and perhaps the rest of Canada in response. By adopting minimum standards for a group who are currently either without rights or subject to uncertainty, the government has expressed a willingness to force some level of compliance on digital platforms. Based on some related legislation, there may be further legislation which provides some levels of protection to others who do not neatly fit into the traditional employee classification. These moves will require digital platforms (and perhaps other organisations) to closely review and amend their operational and compliance programmes.