CHAUDHRI: Gig economy surpasses evolution of tech companies

CHAUDHRI: Gig economy surpasses evolution of tech companies

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Sunira Chaudhri is an employment and labour lawyer and partner at Levitt LLP. She sheds light on some questions for employees during COVID-19.

Supplied photo / Levitt LLP

“Gig Workers Deserve Better” was the title splashed across a New York Times op-ed article earlier this week.

One would think the article was written by an activist labour group, but to my surprise it was penned by none other than Uber’s CEO Dara Khosrawshahi.

In this article, the CEO asks, “do we (Uber) treat drivers well?” and noted that Uber has “failed drivers by treating them as contractors.” He goes on to admit Uber’s current employment system is “outdated and unfair” and rightly points out that magically turning drivers into employees overnight would make rides more expensive and ultimately lead to drivers losing the flexibility they currently have.

Khosrawshahi insists there must be a hybrid between employment and independent contractor relationships — a third way or a custom fit for gig workers. Khosrawshahi is a little late to the party as Canada seems to be far ahead on gig workers rights.

In June, the Supreme Court of Canada sided with Uber drivers that their agreements with Uber were unenforceable as the court found the terms were simply unfair to drivers. This win also gives drivers the opportunity to enter a proposed $400 million class action lawsuit seeking fair wages and benefits as employees. The flood gates for gig workers are open.

The Canadian ruling was a crystal ball for what was coming for Uber.

Just last week the Superior Court in California ordered both Uber and Lyft to reclassify drivers as employees rather than contractors. Despite its rallying call to its gig economy peers to treat drivers better, in an abrupt change of course, Uber said it would temporarily shut down operations in California unless the court changes its ruling.

So much for treating drivers fairly.

Of course, some will argue the behemoth organization needs time to re-work it’s model. But Khosrawshahi insisted otherwise in his op-ed claiming:

“Uber is ready, right now, to pay more to give drivers new benefits and protections.”

While Uber’s op-ed is sure to win every ‘good intentions’ contest, the gig economy has surpassed the evolution of tech companies across the continent. It’s time to catch up.

Related

On to your questions from the week:

I am a 24-year-old full-time “office assistant” for a small family-owned firm in Toronto. I do not drive and rely on the GO train to commute into the city, about a 1.5 hours each way. I have currently been working from home successfully for the duration of the pandemic and can fulfill most job duties from home. I have even proven to be more productive and innovative during this time.

My manager is pressuring me to go into the office for what I feel are non-essential reasons. They have asked me to come in about 2-3 times now and I have expressed my discomfort with taking the GO train even if the office space is safe.

I do not have any underlying health conditions, but I fear that Toronto is just now entering stage 3 and it is better to be safe than sorry for myself and my parents whom I live with at home. If I am able to fulfill most job duties from home as I have been for the past 5 months, I think there is no harm in waiting longer before I return to the office. I am feeling pressured and stuck. What are my options?

Using public transportation is a sore spot for many people right now. That said, employers are free to demand employees return to work (especially if you did not work from home prior to the pandemic). Without underlying health conditions, you are likely out of luck to decline returning to the workplace if your employer insists on it and the workplace is safe. If you don’t feel it is safe you should tell your employer why, in writing.

If you have medical reasons to allow you to stay home, your employer may have to accommodate that but would not be required to continue to allow you to work from home unless they agree.

I was laid off in March due to COVID-19. I was told I would be returned. Then in June, I received an email saying the courts are slow and no guarantee of return date and any return date would be at reduced hours. With no promise of return, I found a new job. Am I entitled to anything? Plus, while I was off, my employer hired someone else despite telling me there’s no work and things are slow.

Depending on how long you are off for, you may want to bring a claim for back wages that you lost while you were out of work. Many employees have been away from work for five months so you very well could be. If, however, you took EI or the CERB, you may be required to make repayments of those government benefits if you happen to land a settlement.

I was wondering if you can help me to decide whether I should look for counsel. My workplace closed due to COVID-19 in March. I was put on a “temporary pause of employment.” Looks like we were kicked out by the landlord. My location doesn’t exist anymore. The company has not laid me off yet and said they will try and see if there’s another position available at another location. The other locations are all 30-plus kilometers away. If they offer a position there, do I have to take it? Should I look into getting counsel to try and at least get my severance? I have been with the company for 12 years.

If you were unpaid during this “temporary pause” you can take the position you have been constructively dismissed. If travelling to another location increases your commute and potentially the timing of your shifts in a fundamental way, then you don’t have to agree. If, however, there are more minor changes like a 15 minute addition to your commute, with all other terms remaining the same, while annoying, it may not be enough to turn down. I would suggest getting counsel now to help navigate this.

Email me at schaudhri@levittllp.com with your COVID-19 related workplace questions and your question may be featured in a future column. Till then, stay safe my friends.

— Sunira Chaudhri is a partner at Levitt LLP, Labour & Employment Lawyers

@sunirachaudhri





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