With the introduction of ride-hailing companies like Uber and Lyft in 2020 and the growing role of technology in our daily lives, the “gig economy” in British Columbia has expanded tremendously. Until recently, “gig workers” in British Columbia operated as independent contractors who did not receive the same protections and benefits enjoyed by employees. However, recent regulations under the British Columbia Employment Standards Act (ESA) and the Workers’ Compensation Act (WCA), have now come into force to change this.
In November 2023, Bill 48, the Labour Statutes Amendment Act, 2023 came into force, introducing changes to the ESA. These changes specify that online platform workers are now considered to be employed by the operator of the online platform from which they accept work and define “online platform workers” as “a person who performs prescribed work that the person accepts through an online platform.” Additionally, on September 3, 2024, B.C. Reg 140/2024 and B.C. Reg 141/2024 came into force clarifying the protections provided by Bill 48. Specifically, they clarify that the prescribed work performed by an online platform worker is either picking up and delivering online orders (referred to as “delivery services workers”) or transporting one or more passengers whose transportation is ordered through a ride-hail online platform (referred to as “ride-hail services workers”).
ESA amendments
B.C. Reg 140/2024 is made under the ESA and makes several important clarifications to the amendments introduced in Bill 48. Specifically, as of September 3, 2024, those who qualify as online platform workers are now entitled to the following protections:
- A minimum hourly wage of CA$20.88 payable to online platform workers (applicable only to “engaged time”), which is higher than the current province-wide minimum wage of CA$17.40 per hour;
- An allowance of not less than CA$0.35 per kilometre travelled during “engaged time” payable to delivery services workers that use any form of transportation other than on foot;
- An allowance of not less than CA$0.45 per kilometre travelled during “engaged time” payable to any ride-hail services worker that use a motor vehicle;
- Additional transparency provided to online platform workers, including advising the worker in advance of the estimated amount that will be payable for completed orders, 72-hour prior written notice, including reasons, of any suspensions of the worker from the platform (subject to particular exceptions) and an appeal process for the worker to pursue;
- Wage statements, which must include the number of hours of “engaged time” worked by the online platform worker during the pay period, the number of kilometres travelled and the total amount of gratuities paid by customers (which gratuities must be remitted, 100%, to the online platform worker); and
- An obligation for the employer to top-up the difference in earnings where an online platform worker’s earnings in a particular pay period do not meet the minimum earnings standards for their engaged time worked.
The regulation also clarifies that “engaged time” includes all time between the moment that the worker accepts an online order until the time that the worker completes the assignment. This may also include idle time spent by the worker while waiting for their assignments. However, if the assignment is canceled at any time, no “engaged time” will accrue.
WCA amendments
B.C. Reg 141/2024 is made under the WCA and is similar in wording to the regulation made under the ESA. The important amendment made to the WCA came into force with Bill 48, and specifies that online platform operators are required to obtain workers’ compensation protection through WorkSafeBC for all of their online platform workers.
Impact on employers
These amendments are the first of their kind in Canada and are the result of extensive public engagement between the Ministry of Labour (the Ministry) and app-based ride-hail and food-delivery workers, as well as the platform companies themselves, labour organizations and academic experts. The goal of Bill 48 was to provide protections for “gig workers” in British Columbia and the regulations that are now in force provide clarity as to the nature of those protections.
Importantly, Bill 48 and B.C. Reg 140/2024 clarify that the employer of an online platform worker is the person who operates the delivery services online platform or ride-hail online platform. Also importantly, B.C. Reg 140/2024 expressly exempts online platform workers from the provisions of the ESA that apply to hours of work and overtime (save and except for section 39 of the Act, which prohibits an employer from requiring their employees from working hours that are detrimental to health and safety), statutory holidays and statutory holiday pay, paid illness and injury leave, and annual vacation and vacation pay. However, online platform workers are expressly not exempted from the provisions of the ESA applicable to providing prior notice of termination, including section 64, which entitles employees to additional notice where the employer intends to terminate the employment of 50 or more employees at any single location within a two-month period. Given British Columbia’s jurisprudence in respect of calculating notice of termination at common law, it may be prudent for online platform operators to consider and review the terms of their engagement with their workers to ensure compliance.
As the amendments from Bill 48 and the regulations are the first of their kind in Canada, it is difficult to predict how laws applicable to online platform workers may progress from here. Notably, the primary concerns raised in the engagement survey prepared by the Ministry of Labour in April 2023, which led to Bill 48 and the regulations above, including providing online platform workers with occupational health and safety protections as employees under the ESA, appear to have been addressed. It remains to be seen if further protections, such as entitlement to paid illness or injury leave, overtime compensation or vacation pay may be considered in the future.
For more information on these cases or any questions related to the legal implications of Bill 48, B.C. Reg. 140/2024 or B.C. Reg 141/2024, please contact the author, Salim Visram. We would like to thank our articling student, Taylor Sterzuk, for her contributions to this insight.
