Companies that offer delivery and ride-hailing services through online platforms will soon be required to provided workers in British Columbia with certain minimum employment standards and workers' compensation benefits—a first in Canada.
On June 17, 2024, the British Columbia ("BC") government release new regulations which will provide app-based ride-hailing and delivery workers, often referred to as "gig workers", with certain minimum employment standards. These workers have typically been engaged as independent contractors, and not subject to employment standards. These changes are brought about by the new Online Platform Workers Regulation1 and amendments to the Employment Standards Regulation2 (the "Regulations").
The Regulations follow recent amendments to the British Columbia Employment Standards Act3("ESA") and Workers Compensation Act 4("WCA") which classified ride-hail and delivery workers as employees for the purposes of the ESA and workers for the purposes of the WCA. We previously wrote about the tabling and passing of these amendments.
The Regulations, which will come into effect on September 3, 2024, are outlined below.
Application
The Regulations will apply to "online platform workers" and "platform operators". Online platform workers are workers who pick-up and deliver online orders through an online delivery platform or who transport passengers hailed through an online ride-hailing platform.5
Platform operators are individuals and companies who operate online delivery or ride-hailing services that connect online platform workers with customers seeking their services. The Regulations do not apply to sellers of goods who directly arranges for the delivery of their own goods, such as a restaurant facilitating their own online orders.6
Key Changes
Minimum Wage, Expenses and Tips
Online platform workers will be entitled to a minimum wage for "engaged time". Engaged time is defined as the period during which an online platform worker is fulfilling an assignment for a platform operator, starting from the acceptance of an assignment and continuing through to its completion or cancelation.7 However, online platform workers will not be entitled to any compensation for assignments which they themselves cancel. Furthermore, if an online platform worker does not begin an assignment upon acceptance, engaged time will commence once they begin.8
The Regulations establish a $20.88 per hour minimum wage during engaged time.9 This rate is 20% above the standard provincial minimum wage and is anticipated to increase annually. The rationale behind the elevated minimum wage is to compensate for the potential lack of earnings when online platform workers are not actively engaged on assignments.
Platform operators will be required to top-up an online platform worker's earnings if they fall below minimum wage standards for engaged time during a pay period. Tips are not included in the calculation of earnings and platform operators will be prohibited from withholding tips or making deductions from tips.
Online platform workers using their personal vehicle for assignments will also be eligible for a distance expense allowance at the following rates:10
- $0.35 per kilometer for delivery assignments, which includes e-bikes and scooters; and
- $0.45 per kilometer for ride-hailing assignments.
The distance expense allowance is not part of minimum wage. It must be paid semimonthly and within 8 days of the end of each pay period.11
Assignment and Destination Transparency
Platform operators will be required to provide detailed information for each assignment offered to online platform workers, including all pick-up and drop-off locations, as well as the estimated earnings.12
Online platform operators will also be required to provide online platform workers with a detailed wage statement each pay period. The wage statement must set out the following for the pay period:13
- the total number of hours of engaged time;
- the total number of kilometres travelled during engaged time and the total distance expense allowance paid or payable;
- the total amount paid or payable for assignments, including any top-up payments resulting from not meeting minimum wage requirements;
- the total amount of gratuities paid by customers for assignments completed;
- an explanation and amount for each deduction; and
- the net amount paid or payable for the pay period.
Suspensions and Termination
The Regulations address the suspension and permanent removal of an online platform worker. If a platform operator intends to suspend an online platform worker's ability to accept assignments, it must provide 72 hours written notice of the suspension, which must include:14
- the reason for the suspension; and
- how the online platform worker may respond to the notice or request a reconsideration of the suspension.
Suspensions cannot be indefinite; within 14 days of a suspension, the platform operator must reinstate the online platform worker, unless the online platform worker has failed to provide information relating to their suspension which has been requested by the online platform operators.
Platform operators will also be obligated to provide written reasons for the permanent removal of an online platform worker. Further, it the removal is without cause, they will be required to provide written notice or pay in lieu of notice, based on the online platform workers' length of service, in accordance with the termination provisions set out in section 63 of the ESA.15
The above requirements are not applicable where an online platform worker has engaged in serious misconduct or poses an immediate risk to the health or safety of any person.16
Workers' Compensation Coverage
Workers' compensation coverage from WorkSafeBC will apply to online platform workers, which includes vocational rehabilitation services for work-related injuries. Platform operators will need to register for coverage with WorkSafeBC, pay premiums to WorkSafeBC, adhere to reporting requirements, and investigate incidents of significance.
Not All Employment Standards Apply
Online platform workers are not entitled to the full array of employment standards applicable to many other workers. For example, the Regulations confirm that the overtime, statutory holiday and vacation provisions of the ESA do not apply to online platform workers.17
Key Takeaways
Companies that provide delivery and ride-hailing services through online platforms need to begin taking steps to ensure they are compliant with these new obligations before they take effect on September 3, 2024.
Our team will continue to monitor developments and provide insights on the implications of the Regulations for employers.
Footnotes
1. Online Platform Workers Regulation, B.C. Reg. 341/2024.
2. Employment Standards Regulation, B.C. Reg. 369/95, as amended by B.C. Reg. 2024/340.
3. Employment Standards Act, R.S.B.C. 1996 c. 113.
4. Workers Compensation Act, R.S.B.C. 2019 c. 1.
5. Online Platform Workers Regulation, B.C. Reg. 341/2024, ss. 1, 2; Employment Standards Regulation, B.C. Reg. 369/95, ss. 1, 1.1, as amended by B.C. Reg. 2024/340 s. 1.
6. Online Platform Workers Regulation at s. 1, "applicable online order".
7. Employment Standards Regulation, B.C. Reg. 369/95, s. 1(4)–(5), as amended by B.C. Reg. 2024/340, s. 1.
8. Employment Standards Regulation, B.C. Reg. 369/95, s. 1(4), as amended by B.C. Reg. 2024/340, s. 1.
9. Employment Standards Regulation, B.C. Reg. 369/95, s. 18.2, as amended by B.C. Reg. 2024/340, s. 3.
10. Employment Standards Regulation, B.C. Reg. 369/95, s. 45.29, as amended by B.C. Reg. 2024/340, s. 5.
11. Employment Standards Regulation, B.C. Reg. 369/95, ss. 1(b)(7), 45.29; as amended by B.C. Reg. 2024/340, s. 1, 5.
12. Employment Standards Regulation, B.C. Reg. 369/95, s. 45.30, as amended by B.C. Reg. 2024/340, s. 5.
13. Employment Standards Regulation, B.C. Reg. 369/95, s. 45.31, as amended by B.C. Reg. 2024/340, s. 5.
14. Employment Standards Regulation, B.C. Reg. 369/95, s. 45.32, as amended by B.C. Reg. 2024/340, s. 5.
15. Employment Standards Act, R.S.B.C. 1996, c. 13, s. 63.
16. Employment Standards Regulation, B.C. Reg. 369/95, s. 45.32, as amended by B.C. Reg. 2024/340, s. 5.
17. Employment Standards Regulation, B.C. Reg. 369/95, s. 34.3, as amended by B.C. Reg. 2024/340, s. 4.
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