Uber drivers are employees, class-action lawsuit argues

T O R O N T O • An ongoing dispute between Uber Technologies Inc. and its drivers has reached Canada, with a proposed class-action lawsuit that claims Uber drivers are employees who are entitled to minimum wage, overtime and vacation pay.

The suit, launched by Toronto-based Samfiru Tumarkin LLP, mirrors those in other jurisdictions that argue Uber’s drivers should be classified as employees, not independent contractors as the company claims. Because it’s a class action, it has to be certified by a judge before it can proceed.

The lawsuit seeks $200 million in damages on behalf of any person who has driven for Uber in Ontario since 2012, arguing that they have been misclassified as contractors and are entitled to minimum wage, overtime pay and vacation pay.

Uber spokeswoman Susie Heath said the flexibility offered by the contractor classification is part of the company’s appeal.

“We are proud to offer flexible earnings opportunities for our partners, and drivers regularly tell us that they value and prefer the flexibility and control that comes with being their own boss,” Heath said in an email. “Thousands of Ontarians have already partnered with Uber in large part because of the independence and flexibility our service provides.”

A survey conducted for Uber by Benenson Strategy Group found that 87 per cent of drivers surveyed signed up “to be my own boss and set my own schedule.”

Similar lawsuits have a mixed track record of success.

In October, New York State ruled that two former Uber drivers should be treated as employees and were eligible for unemployment payments as a result. Around the same time, a British employment tribunal ruled that drivers are entitled to minimum wage and holiday pay.

A few months before that, a U.S. federal judge struck down a proposed US$100million class-action settlement between Uber and its drivers, arguing that it wasn’t “fair, adequate and reasonable” and the plaintiffs could claim far more in damages.

On the other hand, a November ruling by a private arbitrator in California found that drivers are independent contractors, not employees.

The debate centres around how much control Uber has over its drivers and whether this creates an employment relationship.

“The duties performed by the class members and the supervision and control imposed on the class members by Uber creates an employment relationship with Uber,” according to the proposed Ontario lawsuit.

It cites several examples, including the fact that drivers are subject to mandatory inspections, must use Uber’s app, and are paid directly by Uber at specified intervals.