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Canada’s top court rules in favor of Uber driver in gig economy case

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OTTAWA (Reuters) – Canada’s Supreme Court on Friday ruled in favor of a driver in a gig economy case that paves the way for a class action suit calling for Uber Technologies Inc to recognize drivers in Canada as company employees.

FILE PHOTO: An Uber sticker is seen on driver Margaret Bordelon’s car in Lafayette, Louisiana, U.S. February 16, 2020. REUTERS/Callaghan O’Hare/File Photo

UberEats driver David Heller had filed a class action suit, challenged by Uber, aiming to secure a minimum wage, vacation pay and other benefits like overtime pay. Drivers are now classified as independent contractors and do not have such benefits.

Heller’s attorney said the decision allowing him to sue was important, but only a small first step in a case that will probably take years to litigate.

The ride-hailing company’s contract allows arbitration, but not class-action lawsuits. After the ruling, an Uber spokeswoman said the company would amend its contracts “to align with the court’s principles”, without giving details.

“Going forward, dispute resolution will be more accessible to drivers,” the spokeswoman said in a statement.

Two days ago, California said it plans to ask a state court judge to force Uber and Lyft Inc to classify their ride-hail drivers as employees rather than contractors.

Canada’s 8-1 Supreme Court ruling dismisses an Uber appeal to an Ontario high court ruling that said the Uber’s arbitration clause violates provincial labor rules and is “invalid and unenforceable.”

The arbitration process, which must be conducted in the Netherlands where Uber has its international headquarters, costs about C$19,000 ($14,500). Heller earned between C$21,000 and C$31,000 per year.

“This was an access to justice case,” said Michael Wright, one of Heller’s lawyers. The court essentially ruled that “a stronger party was taking advantage of a weaker party in an unfair manner,” said Wright.

Now Heller can restart his class action suit, Wright said, but the matter will not be settled soon.

“This is the first round in a series of rounds,” said Wright, a labor and employment lawyer with Wright Henry LLP in Toronto, adding that it could take “a few more years.”

Uber shares were down 2.7% around noon Eastern Time.

Reporting by Steve Scherer, additional reporting by Moira Warburton; Editing by Chizu Nomiyama and David Gregorio

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Labor Groups, San Francisco Push Bogus Taxpayer-Funded Survey to Support Anti-Gig Law

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A liberal advocacy group’s own researchers raised red flags about a taxpayer-funded study used to justify a union campaign against the California gig economy.

The San Francisco Local Agency Formation Commission helped fund a survey conducted by Jobs with Justice, a left-wing advocacy group largely funded by labor powerhouse Service Employees International Union (SEIU). The survey reported that 71 percent of gig workers in the San Francisco area work more than 30 hours a week and receive “poverty level” wages. According to the group’s website, Jobs with Justice planned to use the survey to “make policy recommendations and support organizing” among gig workers. The survey’s summary page emphasizes the need to enforce anti-gig labor laws.

Left-wing labor group Gig Workers Rising has used the survey to rally in support of California Assembly Bill 5, a controversial law limiting companies’ ability to classify workers as independent contractors. The group called the study “the most comprehensive survey of actual work done” in the gig economy. Internal communications obtained by the Washington Free Beacon, however, reveal that the survey was pitched to potential financial backers as “not representative,” and an academic researcher involved in the study voiced concerns regarding Jobs with Justice’s recruitment tactics.

While the study initially called for 1,200 survey respondents, Jobs with Justice narrowed the scope following the spread of coronavirus, pivoting to an online survey focusing on the pandemic that aimed to reach just 500 respondents.

“The goal behind an online survey of 500 workers, while not representative, would be to turn around data quickly … in order to inform current policy discussions,” an internal description of the updated survey obtained by the Free Beacon said. It went on to reach just 219 respondents.

Pacific Research Institute senior fellow Wayne Winegarden criticized the study’s methodology, calling the survey’s results “meaningless.”

“The survey is not representative of the intended population with the original goal of 500 responses,” Winegarden told the Free Beacon. “The study did not reach this amount, having only 219 responses. So, in no uncertain terms do these results represent the view of gig workers.”

The study also downplayed Jobs with Justice’s involvement in an attempt to bolster its academic appeal. While the published survey lists UC Santa Cruz professor Chris Benner as the project’s lead, Jobs with Justice executive director Kung Feng is described as “leading” the project in internal emails obtained by the Free Beacon. The emails also show that the online survey was written by the group’s research director, Erin Johansson. Benner merely “edited the wording in a few questions,” according to the internal communications.

Benner, who did not return request for comment, also raised concerns regarding Jobs with Justice’s incentive plan to provide a gift card to all survey respondents.

“One, I’m not sure where the budget for that comes from, and two, with an online survey, it leaves open lots of opportunities for people to game it,” Benner wrote in a March 17 email to Johansson.

Following the academic’s objection, Gig Workers Rising continued to advertise the survey in an April tweet by saying respondents would “get a $10 gift card.” A Jobs with Justice invoice for the study listed $45,181 in “survey costs,” including “incentives and app payments.” While the published study lists the gig economy companies each of the survey’s 219 respondents work for, internal data obtained by the Free Beacon shows that 91 of the respondents did not report their company, suggesting some may have been non-gig workers who completed the survey for the incentive.

The invoice was sent to San Francisco Local Agency Formation Commission executive officer Bryan Goebel, who solicited funding for the study on Jobs with Justice’s behalf, internal emails show. Reached for comment, Goebel said the coronavirus-related study “was never intended to be” representative and that $50,000 in taxpayer funds were used only for the “initial pilot survey” launched prior to coronavirus. The final study combined the results of both the pilot survey and coronavirus-related survey, a methodological red flag, according to Winegarden.

“In the midst of the survey being in the field, they stopped the survey, reworked it to account for the coronavirus, and then continued with the survey,” Winegarden told the Free Beacon. “These results from before and after cannot be compared to one another.”

Goebel also told the Free Beacon that Benner “was indeed the overall lead” on the study, adding that Jobs with Justice simply “led the outreach.” He did not address the fact that the coronavirus-related survey was drafted by Jobs with Justice.

Charlyce Bozzello, a spokeswoman for labor watchdog the Center for Union Facts, said activist front groups often misuse research to advance their ideological goals.

“For years, unions have used flawed ‘research’ to support their organizing campaigns, so it’s no surprise to see Jobs with Justice involved in this project,” she told the Free Beacon. “What is surprising is that the city of San Francisco and UC Santa Cruz would lend their names to this charade.”

Other gig economy studies dispute Jobs with Justice’s findings. A Cornell University study published Monday found that 96 percent of Uber and Lyft drivers in Seattle drove less than 40 hours a week. It further found that 92 percent made more than Seattle’s minimum wage of $16.39, with the media driver earning $23.25 per hour after deducting expenses.

Jobs with Justice and Gig Workers Rising did not respond to requests for comment.

Collin AndersonCollin Anderson is a staff writer for the Washington Free Beacon. He graduated from the University of Missouri, where he studied politics. He is originally from St. Louis and now lives in Arlington, VA. His email address is anderson@freebeacon.com.



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Why the Uber driver case has the potential to alter Canada’s gig economy forever

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Article content continued

Heller was a driver for UberEats who argued that he was an employee, not an independent contractor. That meant Uber owed him overtime, vacation, holiday pay, as well as other entitlements.

The Supreme Court didn’t answer the question of whether Heller and other Uber drivers were employees or not, so in that respect the real issue lies ahead. But it did remove an important roadblock, paving the way for a potentially $400 million lawsuit.

Tucked away in the contractor agreement that every Uber driver must sign before they can start working is an arbitration clause.

The clause required drivers to bring any problems to arbitration in Amsterdam, the Netherlands, and not to an Ontario court. The arbitration in Amsterdam would cost around $14,000 in administrative fees up front, as well as the cost of transport and legal representation in the Netherlands. Something no Uber driver could even possibly afford. Take Heller himself, who earns around $400 to $600 a week for 40 or more hours of work.

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Gig Economy Ballot Measure Fails Workers, Labor Groups Say (1)

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Daily Labor Report®

July 7, 2020, 8:45 PM

A California ballot measure supported by ride-hailing and delivery companies would lower workers’ wages and limit the power of legislators to institute new labor protections, according to a new report from two labor advocacy groups.

Proposition 22, known as the “Protect App-Based Drivers and Services Act,” will appear before California voters in November and is backed by $110 million from Uber, Lyft, Postmates, Instacart and Doordash. The companies say their workers want to preserve their status as independent contractors, while the National Employment Law Project and the Partnership for Working Families counter that the proposition would roll back existing protections under a state law giving certain gig workers…

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