When the pandemic hit, many people hunkered down at home, hoping to stay put and ride out the storm until it passed. For others, as the scourge of the coronavirus was spreading fast and seeking new host organisms anywhere it could find them, those early days in the eye of the storm, so to speak, were an anxious race against time.
With the number of people harboring the deadly pathogen rising at an alarming rate, governments around the world responded to the mounting public health crisis with various measures, including containing the viral spread through border closures. Before Canada shut its doors, Saurabh Sharma, 28 years old, managed to catch a plane from his native India and settled in Toronto to reunite with the love of his life.
“I’m glad I moved,” he said. “I know people whose permanent residency expired and are stuck in India for two years now. Their whole life is on hold.”
Sharma was one of the fortunate few who avoided the heartache, confusion, and frustration that befell so many immigrants and refugees caught in pandemic limbo.
But in July 2020, the month he arrived in Toronto, the whole world was on hold with pandemic-related lockdowns and business closures, millions adjusting to new work-from-home arrangements, unloaded cargo idling at international harbors, and snarled supply chains buckling under global stress.
Unemployment skyrocketed, prices broke through the roof, and the effects of shortages in everything—from french fries to pipette tips—were felt everywhere. Thus, the vaunted wings of supply were slashed in flight to meet demand, throwing the whole global economy into shambles.
After the initial shock, however, there was hope that things would stabilize. By July 2020, Ontario was emerging from what seemed like the worst of the ordeal, with some small gatherings allowed and the curve of inflections flattening. The worst, unfortunately, was still yet to come.
Among Sharma’s belongings was a law degree, wedged somewhere in between the clothes in the two suitcases he schlepped through international airports. Law school suited him, given his penchant for reading the mind-frying arcana of contracts. Before COVID, he was looking forward to studying for the equivalency exams for internationally trained lawyers. But that plan had to be put on the backburner for now. Money was tight. And jobs were still scarce, especially for immigrants with no Canadian job experience to put on a resume.
That lack of experience, Sharma says in a text, “kept me out of office jobs.” But it wasn’t for lack of trying: “I applied to, like, 1000s.”
Uber Eats was one of the few places beckoning with an employment offer and low barrier to entry. The province lost 355,000 jobs in 2020, with unemployment soaring to 22 percent among young adults, according to a February 2021 report. The hardest hit sector was accommodation and food services. Government data show that as many as one in five Canadians in Ontario now work in the gig economy.
In December 2020, Sharma began working five to six days a week for the company to eke out a living. His weekly earnings averaged between CAN$400 to CAN$800. Uber turned a profit for the first time in 2021 off the labor of millions of gig workers like Sharma.
Uber wasn’t the only one awash in liquidity. During the pandemic, Big Tech’s profit margins burst at the seams. Some of these companies funneled record profits into growing their operations. After hiring 300,000 new shoppers weeks before, Instacart responded to COVID spikes in demand for grocery delivery and mass job losses in other industries by pushing to add a staggering 250,000 more employees in April 2020; Amazon, likewise, capitalized on the boom in online orders by going on a hiring spree, putting 427,000 new employees on the payroll in ten months.
“Inside any major retailer today, meaning food, drug, mass retailer or home centers, there is gig work being executed fairly continually,” Stan Zylowski, CEO of retail execution and workforce management platform Movista, recently told NBC News reporter Leticia Miranda.
Contract work has exploded since the pandemic began, heralding profound changes in the future of work. A September 2021 study by the multinational bank Barclays estimates there are 7 million non-restaurant delivery drivers in the US delivering one billion orders. The same study found that DoorDash alone delivered 1.4 billion orders in 2021.
In a May 2021 study, the nonprofit Payments Canada found that more than one in ten Canadian adults work in the gig economy, with more than one in three Canadian businesses employing them—a growth fuelled by the pandemic.
The elderly and immunocompromised were unable to venture out with COVID ravaging the world, while many professionals remained at home with Netflix and takeout by their side waiting for the waves of shape-shifting variants like Delta to crest. These socially distanced masses relied on app-based couriers to get food and stuff. Every worker should have been afforded the same protections and flexibility as those who were able to work from home, or the same support as those who were able to collect government aid while not working, or, at the very least, all the protective equipment and hazard pay needed to perform their essential jobs under such unsafe conditions, but that was not the case.
In August of 2021, however, rather than recognize this essential labor that made the lives of gig workers disposable, Uber tried to stiff Sharma on his already meager wages.
Every dollar counted for Sharma and his partner, but when faced with the sudden, unexplained loss of income he had earned and was expecting, that dreadful question that countless workers have felt sink in their stomachs sunk in his like an anchor hurtling to the bottom of the ocean: “What can I do? Who can I turn to?”
Suddenly that law degree buried in piles of clothes assumed new meaning—he might need it after all. But Sharma had also made new friends in his adopted country, and his friends were ready to help. Through Gig Workers United, which is affiliated with the Canadian Postal Workers Union, Sharma had a core group of fellow gig workers to turn to for strategizing and thinking through ways to fight back. As Sharma described to me, his wasn’t the singular story of a “rogue worker” on a mission for justice, a proverbial hero’s journey. No, this was an organizing story of collective power.
“There are a bunch of people in Gig Workers United who are artists and photographers and app designers,” said Jennifer Scott, a food courier and president of Gig Workers United. “That doesn’t necessarily make it easier or more difficult figuring out how to fight the boss or how to win our rights. But the reason that we organize, the reason we come together in a union, is to take all those little bits that each of us have and then collectively use them to win.”
“Saurabh has a legal background, and it may be easier to see what violates the laws in Ontario,” she continued. But “the fact that not all of us can read our contract easily and comfortably is why we organize.”
When Sharma started working for Uber Eats, the first thing he did was pore over his contract. So, amid a set of wholly unexpected circumstances—working for Uber Eats, finding a band of fellow troublemakers, reading an employment contract—he ended up filing an employment standards complaint backed by Gig Workers United and the Canadian Postal Workers Union.
The circumstances surrounding the complaint occurred in October 2021 when Uber made an unauthorized deduction from his wages claiming the app had a technical glitch. The payout for the two orders he had delivered totaled $265.26. But Uber nickel-and-dimed him, reducing it to $45, and leaving Sharma with a negative balance of $195.22, according to a copy of the court ruling reviewed by The Real News.
In legal terms, Sharma understood that it was a “claw back.”
“Let’s say there’s a warehouse worker, and there’s a truck that needs to be unloaded. The employer can say, ‘I’m going to pay $100 if you unload today.’ But then, tomorrow, the employer comes back and says, ‘You only deserved $50. I want that other $50 back.’”
Now, “basically, I was in debt to Uber,” he added.
After a three-month investigation, an officer of the Ontario Ministry of Labour rendered a decision finding that Sharma was an employee whose rights had been violated. As a result, Uber had to pay him $1,019.37 to account for unpaid wages and administration costs. The decision applies only to his case, but it has broader ramifications.
As far as the employment standards officer was concerned, Sharma was an employee under Ontario’s Employment Standards Act, which entitled him to a host of protections.
The “decision confirms that there is a very strong case that these workers are already ‘employees’ under employment standards legislation. This reality colours all debates about new legislation to regulate workers in the digital platform economy,” wrote labor lawyer and York University professor David Doorey.
Gig Workers United celebrated the news in a Feb. 28 announcement. “A new ruling from an Ontario Ministry of Labour officer confirms that our path toward worker rights for app-based gig workers is through directly taking on misclassification.”
“The order requires a guarantee of minimum wage for all hours worked—from when we sign in until we sign out of the app,” the statement continued.
Among all the violations, Uber was dinged for deducting Sharma’s wages without notice, failing to provide him breaks during his shifts, minimum wage discrepancies, and weaseling him out of holiday pay and overtime (overtime violations are arguably the most widespread means by which so-called gig workers are underpaid for the work they do).
The company intends to appeal the decision, according to the Toronto Star. The case is now headed to Ontario’s labour relations board. In 2020, the same board handed down a landmark decision recognizing food couriers working for the Berlin-based company Foodora as dependent contractors, entitling them to the right to unionize. As a unionization push with the Canadian Postal Workers Union was underway, Foodora entered bankruptcy proceedings and exited Canada.
These violations may also make Uber liable in a class action lawsuit. In 2017, Uber Eats courier David Heller filed a class action lawsuit against Uber, arguing that food couriers should be entitled to minimum wage, vacation, and other protections because they met the definition of employees under Ontario’s Employment Standards Act. Last year, Ontario’s Superior Court of Justice certified the class action lawsuit, involving roughly 50,000 misclassified workers.
Just a week after news of the Feb. 22 ruling broke, the Ontario government announced the “Digital Platform Workers’ Rights Act,” a legislative package slated to hike the pay of Uber, Lyft, DoorDash drivers, and other couriers to $15 hourly, but only when a worker is actively transporting someone to their destination.
“Just think about it,” said Sharma. “If you drive your car for an hour, you end up using $6 to $7 for gas. This is aside from insurance payments and everything else.”
In contrast to the court decision, which covered all the time Sharma was logged into the app, the legislation only applies to engaged time (i.e., when a driver is transporting a passenger from point A to point B, but not when they are driving between pickup and dropoff locations or dealing with delay-causing circumstances out of their control).
“As everybody knows who does this type of work, there’s a lot of time spent just waiting for food at the restaurant, or waiting for an order,” he added.
That means drivers would have to work longer hours. A 2019 City of Toronto study found that drivers spent 40% of their time waiting for a trip, while 48% of the time was spent driving someone to their destination, and another 12% on the way to pick someone up.
The legislation also adds a dispute resolution process with arbitration taking place in Ontario—not the Netherlands, as Uber’s contract clause previously had it until July 2021.
“This is classic ‘snatching defeat from the jaws of victory,’” said Nicole Moore of Rideshare Drivers United in California when she learned of the news. “There are literally tens of thousands of us ready to wage the fight for real labor rights for all workers, including app-based workers.”
The legislation also touts pay transparency. But across two dozen US cities, Uber has decided that instead of paying its drivers based on the time and distance traveled with a passenger, the company will now deploy an algorithm to calculate the fare in a new feature known as “Upfront Fares.” An Uber spokesperson says the change will translate into less money going into drivers’ pocketbooks on longer trips and increased fares on shorter ones.
“There should be less guess work in gig work—that’s why we are testing new features to give drivers more control and choice, including showing how much they’ll make and where they will go on every trip request before they accept it,” said Uber spokesperson Harry Hartfield in a statement to The Real News. “While earnings are subject to seasonal demand patterns and the types of trips a driver chooses to take, we haven’t observed an earnings impact due to this pilot in cities that have had upfront fares for more than six months.”
But according to The Markup’s Dara Kerr, drivers in cities where the new feature has been piloted say Uber is taking a bigger bite out of their earnings.
“Before, you could guesstimate” how much you’d earn by approximating the distance and time, one driver told Karr in Columbus, Ohio. But after the change, “there’s no rhyme or reason to it.”
Instacart, DoorDash, and Shipt have been experimenting with what are known as “black box algorithms” to chip away at their workers’ earnings with arbitrary and non-transparent changes to the opaque calculations by which these proprietary algorithms determine workers’ pay rates and performance ratings.
“When you put fare calculation behind a black box algorithm, it’s possible to have the capacity to learn from drivers behavior and actually what is the lowest rate a driver will take for a ride,” said Amos Toh, a senior researcher at Human Rights Watch who studies artificial intelligence. Toh conceded that it was hard to prove Uber’s aim was lowering fares, chalking it up to the company’s “secrecy.”
Considering these maneuvers in the US, the greater transparency championed in the new legislation in Ontario is little more than wishful thinking. Similarly, Uber’s toothless agreement with the United Food and Commercial Workers Canada to provide representation and some perks, including a dispute process, mirrors a stronger package of benefits in Washington State with Teamsters Local 117 that passed the House and Senate and awaits Governor Jay R. Inslee’s signature. The legislation fulfills a longstanding aim of rideshare companies: preempt local regulations and enshrine gig workers as independent contractors without the full rights that employees are guaranteed under labor law.
As Terri Gerstein, a workers rights lawyer at the Harvard Law School’s Labor and Worklife Program, argued in The American Prospect, the bill “would also exempt Uber and Lyft from many important laws that virtually every other employer in the state must follow by flat out enshrining the misclassification of these workers as independent contractors rather than employees. The Tacoma diner, the Seattle coffee shop, and the supermarket in Spokane all are legally required to provide a safe workplace, pay employees for all hours worked, and pay taxes to support the state’s unemployment compensation system.”
For Sharma, the goal is employee status. “Everything else will flow from there,” he said.
“When workers have an option—the option to work with the boss or the option to unite and take action against the boss, we always choose the one where we get to take action against the boss,” said Gig Workers United’s Scott.
“It doesn’t feel like a dark future for us,” Scott continued. “Just feels like one that we need to take a hold of.”