The saga opposing the multinational Uber to taxi drivers has been raging in the province of Quebec for nearly two years. We have witnessed a multiplication of public interventions coming from both camps in order to rally to their respective cause both the government and the majority of the population.
Taxi drivers, represented by a strong lobby, mainly argue that all taxi-like drivers should be submitted to the same rules such as holding a class 4C driver’s licence and being part of a professional association subjecting them to precise rules and norms of conduct. At the opposite end of the spectrum, Uber argues that forcing its drivers to comply with the existing requirements involving, for instance, holding a permit, would not be a viable option. Rather, they propose to formally be recognized as a provider of ride-sharing services and to be imposed proper taxes to generate around $3 million yearly. As for the government, it has had to face many critics, stemming from the population and from the members of its own party (Liberal Party of Quebec), due to its lack of regulations or rather its slowness in taking concrete action. In response to these critics, the government recently adopted Bill 100 (click here to access the text) which imposes the payment of taxes on all drivers and gives a 90-day stay period for Uber to propose a pilot project for the regulation of their activities.
One of the issues that remains unresolved is the determination of the category of workers under which Uber drivers fall, i.e. whether Uber drivers are independent contractors or employees. In Quebec, the legislation and case law have set out various factors to be considered when classifying a worker as an employee, including: compensation, performance of the work, whether there is subordination in the performance of the work, ownership of tools and uniforms, and health and social benefits offered to the workers. On the other hand, a contract for services will mainly consist in completing tasks or supplying services for a pre-determined price. Hence, the most relevant criterion is subordination and in its absence, the worker is deemed to be an independent contractor. That is mainly what Uber is trying to argue by putting the emphasis on the fact that the drivers work wherever, whenever and for however long they choose. Succeeding in making such an argument would necessarily have implications both on a legal and fiscal standpoint. It would affect the possibility, for both parties, to enter into negotiations for the establishment of a collective agreement in the workplace, the scope of labour protection for the drivers and any indemnity relative to industrial accidents and occupational diseases to be paid by Uber if need be.
So far, this issue has never been raised in front of the Quebec judicial system. We can expect it most likely will, sooner rather than later. In California, a driver was recognized by the California Labor Commission as an employee of Uber for the purposes of accomplishing work that is at the core of Uber’s regular business and for using the tools imposed by Uber in order to provide the said transportation services (Barbara Ann Berwick vs. Uber Technologies, Inc., a Delaware corporation, and Rasier – CA LLC, a Delaware limited liability company, case no. 11-46739 EK). Uber has appealed this decision, which we will follow with great interest. We note that the California Unemployment Insurance Appeals Board and the Bureau of Labor and Industries of the State of Oregon have both issued decisions to the same effect, classifying Uber drivers as employees. Moreover, a motion for a class-action against Uber, also stemming from the judicial district of California, was recently granted (Douglas O’Connor, et al., v. Uber Technologies, Inc., No. C-13-3826 EMC). In this case, the judge found that the plaintiffs (three Uber drivers) raised several important legal questions, most importantly the one regarding the classification of the drivers either as employees or independent contractors. These two decisions may well be a window to the legal future that awaits Uber in other regions of the world. The question raises serious debates not only in the United States, but also in Europe and, closer to home, in Quebec. Answering this question will most likely have an impact on the new concept of a sharing economy.
Written with the assistance of Michèle Giguère, summer student.