Uber heading to the Supreme Court

The fate of the gig economy in Canada is in the hands of the Supreme Court. The saga of David Heller and Uber has been in the news for several months and raises important employment law questions relevant to those working in the gig economy.

History of the Case

This is a class action case brought by representative plaintiff David Heller, an Uber Eats driver. Heller argued, on behalf of Ontario Uber drivers, that they are employees of Uber and entitled to the benefits of the Employment Standards Act, 2000 (ESA).

Uber currently has its drivers enter into a Service Agreement. It characterizes itself as a “lead generation service” and drivers, via the Service Agreement, are able to use the Rider App to pick up those leads.

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Employer Pays for Failing to Investigate Harassment

Readers of our blog will know that employers have a legal obligation to take workplace harassment seriously. These obligations are set out in Ontario’s Occupational Health and Safety Act (OHSA) and require that employers with more than five employees have a policy and procedure dealing with workplace violence and harassment. Employers are required to take the safety of their employees seriously and adequately respond to incidents of violence and harassment, but, not every employer does. A recent case sheds light on the consequences of looking the other way when it comes to violence and harassment.

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Fired by a robot!

Amazon has been in the news recently for its practice of tracking warehouse workers’ box packing speed and firing them if they do not “make rate.”  According to internal Amazon documents, related to a termination at a Baltimore Maryland warehouse location, Amazon’s automated tracking system automatically generates a series of warnings. After 6 warnings in 12 months, a termination is automatically generated if workers fail to meet “efficiency” standards.  These termination decisions are made automatically by the system and without input from a real person, though Amazon says that supervisors are able to override the automatically generated terminations.

We have truly reached an age where people and robots are working together and where robots are effectively performing an HR function. HR, unlike a self-checkout or an assembly line robot, is something we normally think of as a soft, people only skill! Robots are branching out! However you may feel about machines in the workforce, we think it’s pretty cool that robots are expanding their skill set. While there are certainly risks to be navigated and considered, there are also undoubtedly gains to be had in terms of efficiency and elimination of bias. Robots do not have teacher’s pets!  But should robots be making human resources decisions?

When Your Boss is a Robot

So, effectively, Amazon workers are, to an extent, monitored and managed by these rate tracking robots. The robot supervisors also track the time an employee is “off task” – reportedly causing some employees to skip bathroom breaks. Decisions about productivity rates are made by (human) managers outside of the facility and changed only if more than 75% of the workforce fails to meet the targets. Targets are reviewed quarterly.

Amazon says that a worker can apply to have their termination reviewed by the general manager of their facility or to an appeals panel of their peers. In the Baltimore documents noted above, the terminated worker on one occasion gave the excuse that his “rate” was low because he was ill. He was told by the peer review panel that he should not have come in if his illness was going to slow him down and impact his rate.  

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Sexual Harassment in the Fundraising Donor Space – Part Two

Firstly, Happy May Day and Happy International Workers’ Day!

This week we will be continuing our series on Sexual Harassment in the Fundraising Donor Space and exploring situations where needed donations or funding come with strings attached.

If you haven’t read our Part One, you may want to check it out before reading on.

In our previous post, we discussed the employer’s obligation to protect workers from violence, harassment and sexual harassment in the workplace and covered the broad definition of the workplace. Then we posed a variety of tough questions around what to do when the perpetrator of that violence or harassment towards the worker is someone the organization needs. Is tolerating bad behaviour from an important donor just the cost of doing business? And if so, what are the costs?

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Sexual Harassment in the Fundraising Donor Space – Part One

We have talked a lot about workplace sexual harassment on this blog. Practising exclusively in workplace law we, unfortunately, see the issue of workplace sexual harassment come up a lot. Helping employers and employees of all shapes and sizes deal with issues related to sexual harassment makes up a lot of what we do.

Employer Obligations

Ontario organizations and businesses, be they big or small, for-profit or non-profit, as long as they have at least one worker of some type, paid or unpaid, have obligations regarding workplace harassment, violence and sexual harassment under the Ontario Occupational Health and Safety Act (OHSA), as well as the Ontario Human Rights Code. Other provinces have similar legislation and employer obligations. Employers must take steps to protect workers from violence, harassment and sexual harassment on the job and in the workplace.

Workplace, by the way, does not just mean the physical office or worksite but any land, premises, location or thing at, upon, in or near which a worker works. If a worker goes on a work trip, attends an event as part of their job, or travels to a client site then those places are also the workplace and the employer’s obligation to keep the worker safe travels with them.

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Let’s talk ergonomics!

You may be scratching your head at our title. What’s ergonomics got to do with law? Maybe even asking, what the heck is ergonomics? Well in this post we will answer both of those questions and tell you why workplace ergonomics should be on the radar of employees and employers alike.

Ergonomics is the science and study of working conditions with respect to the physical body and duties of the worker.  If you work in the public sector or a large organization you’ve probably heard this word, maybe you have even had an occupational therapist come and give you an ergonomic assessment! Lucky you! Ergonomic adjustments for office workers will include things like chairs, standing desks, special keyboards or computer displays.

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