In April 2022, Ontario passed the Digital Platform Workers’ Rights Act, also called Bill 88. Although the Digital Platform Workers’ Rights Act is not yet in force, it is expected to be proclaimed into force this year.
This blog post will explain what the Digital Platform Workers’ Rights Act is, who it applies to, and how it will impact certain employment relationships.
What is the Digital Platform Workers’ Rights Act?
When in force, the Digital Platform Workers’ Rights Act will provide certain rights and protections for workers who make income from digital platforms, such as ride-share drivers, couriers, or other workers who obtain their work assignments through the use of a “digital platform.”
This piece of legislation can be thought of as a parallel legal regime to the Employment Standards Act, which provides minimum protections to employees. The requirements of the Digital Platform Workers’ Rights Act, however, will apply to all workers who obtain work through a digital platform, regardless of whether that worker is considered an “employee.”
What is a “digital platform”?
The Digital Platform Workers’ Rights Act defines “digital platform” as “an online platform that allows workers to choose or accept or decline digital platform work. In turn, “digital platform work” is defined as the “provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” The worker is then able to accept or decline the work assignment. Examples of digital platforms include Uber, DoorDash, SkipTheDishes, and Lyft.
What rights and protections does the Digital Platform Workers’ Rights Act provide to workers?
The Digital Platform Workers’ Rights Act includes the following rights and protections for digital platform workers:
- Right to a minimum wage. Operators of digital platforms will be required to pay workers at least the statutory minimum wage under the Employment Standards Act for each work assignment, which is currently $15.50 per hour. An operator cannot include tips or gratuities in the calculation of minimum wage.
- Rights to tips and gratuities. Digital platform operators will not be permitted to withhold any tips or gratuities from a worker.
- Right to maintain access to the digital platform. Operators of digital platforms will not be permitted to remove a worker’s access to the digital platform unless the operator has provided the worker with a written explanation of why access was removed; and, if the removal is for 24 hours or longer, the worker must be given at least two weeks written notice in advance of the removal.
- Right to recurring pay period and payday. Operators of digital platforms must establish a recurring pay period and recurring payday. Operators will be required to pay workers all amounts earned during the pay period (including tips and gratuities) by the payday for that period.
- Protection from reprisal. Digital platforms operators will not be permitted to intimidate, threaten, or penalize a worker because the worker asks for compliance with the Digital Platform Workers’ Rights Act, makes inquiries about their rights under the Act, files a complaint under the Act, exercises a right under the Act, gives information to a compliance officer, or testifies or participates in a proceeding under the Act.
What information does a digital platform operator need to provide to a worker?
Digital platform operators must provide workers, in writing, with certain information within 24 hours of them gaining access to the digital platform, including:
- a description of how pay for digital platform work is calculated;
- whether the operator collects tips or other gratuities and, if so, when and how they are collected;
- the recurring pay period and recurring payday established by the operator as described above;
- any factors used to determine whether work assignments are offered to workers and a description of how those factors are applied; and
- whether the digital platform uses a performance rating system and whether there are consequences based on a worker’s performance rating or failure to perform a work assignment, and, if applicable, a description of those consequences.
Digital platform operators must provide a worked with written details pertaining to the work assignment when it is offered to a worker, including:
- the estimated amount the worker will be paid for the work assignment along with a description of how that amount is calculated;
- any factors used in determining whether to offer the work assignment to the worker; and
- whether there are consequences based on the worker’s performance rating on the work assignment, or the worker’s failure to perform the work assignment and, if applicable, a description of those consequences.
Further, digital platform operators must provide a worker with specific information within 24 hours of completion of a work assignment by a worker, such as:
- the actual amount the worker will be paid for the work, a description of how the amount was calculated, and when the amount will be paid; and
- the amount of any tips or gratuities that were collected by the operator in respect of the work assignment, the amount of tips or gratuities that will be paid to the worker, and when the amount will be paid.
Digital platform workers are also entitled to obtain information about their performance ratings. This information can include details regarding when a worker must be given an average rating and within what time frame.
Operators of digital platforms will be required to keep certain records
Digital platform operators will be required to keep records of certain information about each worker using the digital platform. Operators must retain these records for at least three years after the worker’s access to the digital platform is terminated. This information includes:
- the worker’s name and address;
- dates on which the worker was given access to the operator’s digital platform to perform work assignments;
- dates on which the worker’s access to the operator’s digital platform was removed or reinstated;
- the dates that the worker performed the work assignments along with the times that each work assignment started and finished; and
- any amounts paid to the worker in respect of a work assignment, the dates the amounts were paid, and a description of the payments, including tips or gratuities or other amounts that were included in the payment.
Contact Mississauga Business Lawyers at Bader Law for Trusted Advice on Employment Law Disputes and Employment Standards
The experienced employment lawyers at Bader Law regularly assist business owners and entrepreneurs to ensure that they maintain compliance with their legal and financial obligations. We also help employers understand and fulfill their obligations towards employees and workers, while helping them manage and mitigate possible risk and liability. Our lawyers can advise on stand-alone issues, or provide regular guidance throughout the lifetime of your venture. Reach out to us online or call us at (289) 652-9092 to schedule a confidential consultation with a member of our team.