On April 11, 2022, the Working for Workers Act, 2022—the most recent omnibus legislation to modify employment and labour standards in Ontario—received Royal Assent, enacting the Digital Platform Workers’ Rights Act, 2022 [DPWRA].
As mentioned in our recent blog post, on the day it comes into force, the DPWRA will create new rights for digital platform workers and will assign corresponding responsibilities to digital platform operators (“operators”). Specifically, the DPWRA will protect employees and contractors who perform “digital platform work”—which includes ride share, delivery, courier, or other prescribed services assigned by an operator—in Ontario, or as a continuation of Ontario-based work.
The DPWRA will create a legislative scheme parallel to Ontario’s Employment Standards Act, 2000 [ESA], providing similar minimum standards for digital platform workers.
Rights and Protections for Digital Platform Workers
Right to a Minimum Wage
The DPWRA will require operators to pay digital platform workers at least the general minimum wage rate payable under the ESA for each work assignment performed by the worker. Currently, the general minimum wage under the ESA is $15.00 per hour, which is set to increase to $15.50 on October 1, 2022. This minimum wage excludes tips and other gratuities.
Right to Amounts Earned
The DPWRA will prohibit operators from withholding, deducting from, or causing the return of amounts earned by a digital platform worker, including tips or gratuities, unless the operator is authorized to do so by statute or court order.
Right to a Recurring Pay Period and Pay Day
The DPWRA will require operators to establish a recurring pay period and a recurring pay day to pay the amounts each digital platform worker earns during each pay period, including all tips and other gratuities. This payment must be made by the pay day for that pay period.
Right to Information
The DPWRA will require operators to provide digital platform workers with the following work information within 24 hours of the worker being given access to the digital platform:
- A description of how pay for digital work is calculated;
- Whether, when, and how tips or other gratuities are collected by the operator;
- The recurring pay period and recurring pay period established by the operator;
- Any factors used to determine whether work assignments are offered to workers and a description of how any such factors are applied; and
- Whether the digital platform uses a performance rating system and details of any consequences associated with performance ratings or any failure to perform work assignments.
When offering a digital platform worker an assignment, the operator will need to provide the following information to the worker:
- The estimated amount for the assignment and a description of how that amount was calculated;
- Any factors used to determine the assignment offer; and
- A description of the consequences, if any, associated with the worker’s performance rating for the work assignment or the worker’s failure to perform the assignment.
Within 24 hours of the digital platform worker completing the assignment, an operator will be required to provide the following information in writing:
- The actual amount, a description of how the amount was calculated, and when the amount will be paid to the digital platform worker for the assignment; and
- The amount in tips or gratuities the operator collects for the work assignment, the amount that will be paid to worker, and when that amount will be paid.
Operators will be required to provide digital platform workers with average and aggregate information regarding the workers’ performance ratings, and a description of any consequences, if applicable, based on those ratings.
If a digital platform worker does not complete an assignment they have accepted, the operator will need to provide the worker with a written description of the consequences, if any, of the failure to complete the assignment before implementing the consequences.
Right to Notice of Removal
The DPWRA will prohibit operators from removing a worker’s access to the digital platform unless the worker has been provided with a written explanation for the removal of access. Further, if access is removed for 24 hours or longer, operators will be required to provide the worker with two weeks’ notice of the removal, unless the worker has been guilty of wilful misconduct or other circumstances as may be prescribed.
Right to be Free from Reprisal
The DPWRA will prohibit operators from intimidating, penalizing, attempting to threaten or threatening to intimidate or penalize a worker because the worker inquires about or attempts to exercise their rights under the DPWRA.
Right to Dispute Resolution
The DPWRA will require all digital platform work-related disputes between digital platform workers and operators to be resolved in Ontario.
Additional Responsibilities for Digital Platform Operators
In addition to the above, parties will be prohibited from contracting out of the minimum standards under the DPWRA. However, operators can provide digital platform workers with a greater right or benefit than the corresponding right provided under the DPWRA.
The DPWRA will also introduce several record-keeping obligations for operators, assign liability for amounts owing to workers to directors of operator corporations, and establish compliance and enforcement mechanisms similar to those outlined in the ESA.
Takeaways
The DPWRA will significantly change the landscape for Ontario-based digital platform work by introducing minimum standards to a largely unprotected group of workers. We may see a trend of similar parallel legislative schemes for groups of workers who do not fit neatly under the “employee” category of the ESA.
Once the DPWRA comes into force on a date still to be determined, digital platforms operators with Ontario-based work assignments will need to invest in their administrative and operational processes to ensure they comply with their statutory obligations. Regardless of whether the digital platform worker is considered an “employee”, the operator’s relationship with that worker will reflect a typical employment relationship governed by the ESA. To avoid liability, it will be crucial for operators to familiarize themselves with the new legislation and make any necessary changes to their contracts, policies, and procedures.
We will continue to monitor for news on the DPWRA and will promptly post about any relevant updates.
