Beyond Master and Servant: Defining the employer-employee relationship in the age of Uber

While classifying workers as employees or contractors has long been a task for courts and labour boards, the proliferation of new and non-standard working relationships, like those created by Uber, has increased the importance (and difficulty) of classification. In this session experts will examine the emergence of the “gig economy,” identify the types of non-standard work that are becoming more common, and discuss the challenges these developments pose for labour boards seeking to classify workers. Specific questions to be addressed include:

• The big picture: What is the “gig economy” and how does it pose a challenge to traditional conceptions of the employer-employee relationship? What other companies, technologies, and forms of work are complicating the classification of workers? What recommendations, if any, should “The Changing Workplaces Review” in Ontario make regarding classification of non-standard working relationships? What recommendations is the Review likely to make? Does the changing nature of work relationships necessitate re-inventing labour and employment law as the “law of economic subordination and resistance” as suggested by Prof. Harry Arthurs?
• Uber-like relationships: How and when will the issue of the status of Uber drivers or similarly-situated workers come before labour boards? How have U.S. adjudicators handled the issue? Are legislative definitions of employee in labour relations and employment standards statutes broad enough to allow labour boards to develop new tests for finding the existence of an employment relationship? Where labour boards have such discretion, must they develop new principles to classify the relationship between Uber and those who drive for it or is it sufficient to apply existing principles to such relationships? Does the existence of an intermediate category of worker, dependent contractor, make classification easier in Canada than in the United States? Aside from classification, what other aspects of Uber-like relationships pose a challenge to labour boards and labour relations legislation? Does existing jurisprudence provide examples of labour boards dealing effectively with the types of workers common in the “gig economy” (e.g. workers who work for an employer for only one project or who are often considered “freelancers”)?
• Related/common employers: How do statutory provisions regarding treating multiple entities as a single employer vary across Canadian jurisdictions? Are such provisions in employment standards legislation similar to those in labour relations legislation? Given the complexity of franchise, contracting, and subcontracting agreements, are the remedial goals of labour employment legislation defeated by current criteria for treating multiple entities as a single employer? For example, should Canadian labour boards follow the example of the NLRB, which has allowed complaints to proceed against McDonalds, USA LLC on the basis that it is a joint employer with its franchisees? Given differences in legislation, can they? In order to protect opportunities for meaningful collective bargaining over terms and conditions of employment, do labour boards require a greater ability to hold contractors and subcontractors to be a single employer?
• Other atypical work relationships: How are labour boards dealing with “temporary” help agency workers? How should workers from temporary help agencies be categorized when they work for months or even years for the same “client company”? How have labour boards dealt with unpaid interns and students in college or university-sponsored work placement programs? How are boards dealing with the other major issue with other types of atypical workers (e.g. temporary foreign workers, casuals), and the appropriateness of including them in bargaining units?