What you need to know about the Digital Platform Workers’ Rights Act, 2022

Exclusive to Canadian HR Reporter from Rudner Law.

Workplace laws are ever-changing, and organizations are constantly being kept on their toes trying to ensure they are complying with the latest rules. Now another change is coming - but this time, the protections are geared towards gig workers in the digital economy.

These workers were previously not governed by employment standards as they are contractors, not employees. Businesses need to be aware of the new regulations so that they can be prepared to protect themselves.

You might recall the Working for Workers Act, 2022. The less well-known Digital Platform Workers’ Rights Act, 2022 was enacted in April 2022 but was not declared in force at that time.

Recently, on Sept. 5, 2024, the Ontario government proclaimed the Digital Platform Workers’ Rights Act, 2022; as a result, the Act and its Regulation will come into force on July 1, 2025.

What does the Act do?

The Act focuses on “digital platform work”, and establishes various rights for workers who perform such work, even if the worker is not technically an employee at law. This means that the rights pursuant to this new Act will also apply to contractors, which is a big shift from the rights provided under the Employment Standards Act, 2000 (ESA).

“Digital platform work” is defined in the Act as “the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform”. An “operator” is defined as “a person that facilitates, through the use of a digital platform, the performance of digital platform work by workers”.

However, the definition of operator explicitly excludes temporary help agencies, which is defined under the ESA.

What rights do workers have under the Act?

While the Act provides workers who perform digital platform work with numerous rights, the following are some of the notable entitlements:

• Entitlement to the same minimum wage rate as employees will be entitled to under the ESA, specifically with respect to each work assignment, and tips and other gratuities are not to be included in assessing compliance with this new rule
• Entitlement to protection against reprisal as a result of the worker making inquiries about or exercising their rights under the Act or participating with the enforcement of the Act
• An operator will not be allowed to withhold, deduct, or cause a worker to return amounts earned by the worker or the worker’s tips or other gratuities, unless the operator is authorized to do so under the Act
• An operator will be required to implement a recurring pay period as well as a recurring pay day, and must pay all amounts earned during each pay period, including all tips and gratuities collected by the operator, no later than the pay day for that period
• An operator will not be allowed to remove a worker’s access to the operator’s digital platform unless the operator has provided the worker with a written explanation of why access is being removed. The operator will be required to give the worker two weeks’ written notice of the removal if the worker is to be removed for a period of at least 24 hours. However, two weeks’ written notice is not required for removal if the worker:
  • Is guilty of wilful misconduct
  • Is removed due to public safety concerns
  • Is unable to legally perform digital platform work under applicable federal or provincial legislation, or municipal by-law
  • Must otherwise be removed as required by law
• An operator will be required to provide certain information in writing to a worker, such as information related to pay calculation, tips and gratuities, performance ratings and work assignments, within specified timeframes.
• Operators and workers cannot contract out of or waive any of the rights workers are entitled to pursuant to the Act, unless they are entitled to a greater benefit set out in a contractual or statutory provision that directly relates to the same subject matter
• All digital platform work-related disputes between a worker and an operator must be resolved in Ontario

How will the government ensure compliance and enforce the Act?

Firstly, the Act will require an operator to record, retain, and keep readily available for inspection prescribed information relating to each worker who accesses the operator’s digital platform, including worker names and addresses, as well as any dates on which workers were given access to the platform for the purpose of performing work. The Act will require an operator to retain such records for three years after the worker’s access to the platform is terminated.

Second, the Act establishes the details and circumstances under which a director of a corporation will be jointly and severally liable for amounts owing to a digital platform worker.

Third, similar to the powers and duties that employment standards officers have under the ESA, the government will appoint compliance officers under the Act. Among other things, they will have the power to enter and inspect any place in order to investigate a possible contravention of the Act.

Finally, the Act sets out provisions relating to the complaints process, collections, and offences, similar to the provisions of the ESA, to ensure compliance with the Act and to enforce the Act.

Key takeaways

While the Act will only apply to certain organizations in Ontario which operate digital platform work for workers, it is a critical piece of legislation confirming the importance of rights and entitlements for precarious workers - including contractors - who perform such digital platform work.

If you are an organization that fits the definition of “operator” under the Act, it would be wise to review your obligations pursuant to the Act with an employment lawyer so that you can ensure you are compliant with the statute when it comes into force on July 1, 2025.

Nadia Zaman is a senior associate at Rudner Law in Toronto. She can be reached at (416) 864-8500 or [email protected].