The Fair Slice ProjectThe Fair Slice Project
Advocating for the rights of exploited workers in Ontario.Advocating for the rights of exploited workers in Ontario.
Why Fair Slice?
The need for employers to be held accountable for their employment practices has never been greater. In more overwhelming numbers, employers are taking advantage of their employees, and the employees are left with little to no recourse especially if they are unaware of their rights. Fair Slice is here to help change that.
The Current Problem
Our current focus is dealing with the epidemic of underpaid pizza delivery workers in Ontario. The Ministry of Labour only steps in to investigate and enforce the Employment Standards Act when a complaint is filed. This means that the vast majority of pizza delivery workers who are not being paid fairly are unaware of their rights and are not filing complaints.
In the vast majority of pizza restaurants, pizza delivery drivers are paid as contractors, whereby each individual driver is responsible for weighing the profitability of their own work. Employers obfuscate the reality of this power dynamic by reassuring drivers that they get to choose their own delivery route to each address, and by highlighting the so-called "uncapped" earning potential of customer tips - the idea that if you do a good job, customers will tip you accordingly.
The heart of the issue with pizza delivery is not in the ideal concept presented above, but rather in the real world. In the real world, employers pay their drivers as contractors, but then turn around and treat them as employees. Here's why that's a problem:
Key Differences
- Employees don't get to choose their shifts - they are assigned by a manager or owner. If you have full-time availability but the restaurant only has need of you part-time, there's nothing you can do about it - your earning potential is capped by the business. Contractors have the benefit of control over their own schedule and thereby control over their own potential for personal gain. How many hours they work and how hard is up to the Contractor, not a client.
- Employees don't get to refuse to make a delivery, regardless of whether the restaurant's systems and processes guarantee the absence of financial gain for the driver. Many pizza restaurants have delivery time guarantees, and many also delivery replacement pizzas to customers for free if there was a quality issue with their initial delivery. Contractors have the ability to choose their work, and to weigh the profitability of each job. Contractors can choose not to undertake a job if it does not provide adequate compensation that covers inherent costs and some measure of profitability however small.
- Employees cannot refuse additional duties like washing dishes, folding pizza boxes, rolling & portioning pizza dough, or cutting & portioning pizza toppings, etc. In the absence of deliveries for drivers to process, many employers fill their drivers' downtime with additional duties that would otherwise be performed by the employer's staff making at least minimum wage or higher. Contractors are paid for work they specialize in based on a trade, special skill, or advanced training - not for work that a client's business is already doing for themselves that would otherwise be performed by their own staff in the Contractor's absence.
- Contractors are paid based on a negotiated price that is not subject to income tax payments by the client business and is not subject to minimum wage laws, allowing employers to bypass minimum wage legislation and take advantage of the otherwise unemployed who desperately require an income however small it may be. Contractors are responsible for the collection of HST (13%) in addition to paying both the employer and employee portions of Income Tax source deductions. If as a contractor you are terminated by a restaurant, you are not entitled to EI and would only qualify for Ontario Works benefits (welfare) in some circumstances. Employees are commonly paid by cheque or direct deposit, with source deductions towards Income Tax, EI, CPP, and WSIB. Employers also pay an additional employer share towards Income Tax. If you lose your job, you then qualify for EI. While employed, your income is easily verifiable which qualifies you for things that commonly require proof of income and creditworthiness, like renting an apartment, getting a bank loan, or purchasing a vehicle or acquiring a mortgage to own your own home.
- Contractors have the benefit of being able to negotiate prices with their clients. They are thereby able to ensure that they can earn a profit based on time spent serving the client and the expenses involved. Employees are commonly paid by cheque or direct deposit, with source deductions towards Income Tax, EI, CPP, and WSIB. Employers also pay an additional employer share towards Income Tax. If you lose your job, you then qualify for EI. While employed, your income is easily verifiable which qualifies you for things that commonly require proof of income and creditworthiness, like renting an apartment, getting a bank loan, or purchasing a vehicle or acquiring a mortgage to own your own home.
Freedom of Schedule
Freedom to Deny Work
Freedom to Choose Work
Freedom from Over Taxation
Freedom to Negotiate
The Current Reality
As a result of the deficiencies of the Employment Standards Act when it comes to protecting the rights of delivery workers, many pizza restaurants that employ delivery drivers pay their drivers anywhere from $5 to $12 per hour plus tips, and in less than half of all circumstances, some portion of the delivery fee collected from the customer as well.
As a personal anecdote, I've worked for 4 different pizza restaurants over the past 5 years, and without naming names, here's how I was paid each time, and in some cases what action I took with the Ministry of Labour (MOL):
Personal Experience
Current Solution
There are a variety of ways that delivery drivers could be given their fair share, and each must be considered not in isolation but rather as one of many remedies acting in concert to level the playing field. While enacting all solutions listed below might not be reasonable, a mix of several of these solutions below might form the ideal path forward for making pay for delivery drivers more reasonable:
- Require employers to receive official permission from the Ministry of Labour prior to classifying a delivery driver as a contractor and not an employee. The emphasis should be on the employer proving that the driver does not perform in-store duties, and has a reasonable likelihood of earning at least minimum wage based on a mandatory reported pay rate in order to be granted permission. The likelihood of earning minimum wage should factor in the relevant CRA mileage rate and verifiable average tip earnings of other drivers at the same store (made feasible through reporting of in-person debit/credit transactions).
- Require employers to provide delivery drivers with an accurate and verifiable representation of the average earnings and expenses a driver can reasonably expect, for each different shift worked (open/mid/close for each day of the week) including: (i) average tip earnings per shift type; (ii) average delivery volume per shift type; (iii) average distance driven per shift type and the current CRA mileage rate; (iv) average income tax obligations for the driver based on the average earnings per shift type; and (v) a cumulative net income per shift type after all expenses are accounted for.
- Empower the Ministry of Labour (MOL) with the ability to investigate and enforce the Employment Standards Act with regard to restaurants offering delivery without a precipitating complaint and grant the MOL the authority to spot-check any business at any time for compliance with the Employment Standards Act and lay fines accordingly.
- Empower delivery drivers with the right to refuse a delivery without fear of retribution by an employer if the driver reasonably believes that the delivery is guaranteed to be of no net financial benefit to the driver. Offering customers free deliveries paid for by the expenses incurred by the delivery drivers should be illegal!