Conference Agenda

This paper provides an evaluation of the legal safeguards contained in the EU Platform Work Directive. It highlights the Directive’s potential, but at the same time, critically assesses certain aspects that could have been better regulated. At the outset, the overall scope of application of the Directive is scrutinized, which appears to be broader than many national regulatory strategies. Subsequent to this clarification, the focus is shifted to the assessment of two core areas of the Directive, namely the legal presumption of an employment relationship and the algorithmic management protections. The presumption of employment has been carefully considered, by looking at the evolution that this legal tool went through, and focusing on its final version, which is less prescriptive but could be more future proof. Importantly, some practical examples are provided of countries which have already adopted legal presumptions, but where problems still persist on the correct employment qualification. The algorithmic management chapter of the directive has been singled out as truly innovative, with the potential to open the stage to broader initiatives for regulating artificial intelligence at work. Importantly, the paper touches upon two rather surprising aspects of the instrument: the Directive’s expected impact on the collective labor rights of persons performing platform work, and the Directive’s potential (indirect) effects on crowdwork outside of the European Union. Finally, an answer is provided to the question of whether the Platform Work Directive constitutes a milestone or a nothingburger.

This contribution attempts to answer the following research questions:

1) What are the benefits and drawbacks of the final version of the presumption of employment, as agreed by the EU institutions?

2) Why do algorithmic management provisions constitute the most cutting-edge protections provided by the Directive?

3) What is the Directive’s contribution with regard to collective labour rights?

4) How can the Directive impact crowdwork outside the European Union?

5) Can the Directive be considered a milestone or a nothingburger?

The research conducted in this paper has a legal nature. This implies that it draws on legal sources, such as legislative acts, case law as well as legal literature. In comparison with the existing literature, it offers a comprehensive analysis of the different legal safeguards contained in the Platform Work Directive, and in particular, the part on the potential impact on crowdwork outside the EU, constitutes an added value.

Introduction: Since the inception of digital labour platforms, the employment status of gig workers has confounded courts and legislatures. In the U.S., states and municipalities have attempted to regulate different aspects of gig work, like minimum wage, with varying degrees of effectiveness. Meanwhile, three states (California, Washington, and Massachusetts) have instituted new categories for gig workers (independent contractor “plus”), situated in between employee and independent contractor. This paper and talk will focus on the construction of these hybrid categories.

Research question: Can a hybrid status classification create and maintain an effective regulatory structure for delivery of worker rights in the on-demand economy?

Methodology. Legal and policy analysis, including compilation, study, and analysis of national, state, and municipal cases, statutes, and referendums.

Contribution to literature and findings. Until the gig economy developed, the U.S. had never recognized an intermediate category (unlike other countries that have had or experimented with one). The independent contractor “plus” categories that have been created to respond to digital labour platforms have been the result of political compromise, revision, and retrenchment. As such, the categories in the three states that have adopted them are not consistent and aim at different methods of implementation. The Massachusetts category envisions unionization as the main mechanism for enforcing worker rights. However, California’s structure deprives the independent contractor ”plus” category the ability to organize and bargain collectively. The Washington State category, meanwhile, focuses on rideshare and on each driver’s right to be free from arbitrary dismissal. This paper explores how the conditions of platform work have shifted in response to these nascent independent contractor “plus” categories, and what that tells us about a path forward for future regulatory interventions.

The digital economy has been, is, and will continue to be a driver of disruptive change for the organisation of society, product and service markets, and, not least, the world of work. Software, data, algorithmic management, AI, digital platforms or “gatekeepers,” and their ecosystems are the bricks and mortar equivalent of the modern economy. This paper explores the transformative effect of digital economy firms on power dynamics and labour market structures, and argues for the need for a normative rethinking of the allocation of employers’ obligations across the value chain, so as to better target the actual holders of labour market power.

In particular, the paper seeks insights into how the scope of the obligations of the employer might be broadened beyond the contractual employment relationship. To this end, it explores recent normative openings in European Union labour law such as the Platform Work Directive and the Corporate Sustainability Due Diligence Directive. It also draws on competition law developments in the digital economy field, which might provide interesting insights for promoting fairer labour markets in situations of excessive power concentration.

The paper’s research question stems from the growing mismatch between the role of the employer as typified in labour law frameworks — as the owner of productive assets and able to conduct its business autonomously — and the actual (weak) economic and labour market position of the firms that gravitate in the ecosystems of digital tech corporations. This phenomenon can be attributed to two parallel trends. The first is the aggravation of contractual and corporate fragmentation, driven by subcontracting and outsourcing practices; while the second is the changing nature of power dynamics among business players, resulting in new forms of market concentration. If left unaddressed, both evolutions would eventually lead to a widespread deterioration of working conditions.

The paper also aims at expanding the scholarly and normative discussion as, while both academic and policy debates have predominantly focused on the worker end of the employment relationship, the allocation of the role of the employer has instead remained mostly unquestioned. Moreover, the analysis is also characterised by a multidisciplinary approach as, recognising the limited resources of normative and institutional debates in labour law, the search for normative solutions also expands to recent developments in EU competition law.

As the ILO moves towards a standard-setting discussion on ‘decent work in the platform economy’, long-standing regulatory questions at the heart of gig work remain unsettled: how should we define the duty-bearers, i.e. ‘digital labour platforms’? What should count as working time, especially in the context of multi-apping across different platforms?

This paper draws on comparative research and recent legislation and jurisprudence to propose concrete answers to these fundamental questions. It first develops a definition of ‘digital labour platform’ that aims to include more than the ‘usual suspects’—i.e., transportation and delivery platforms—by identifying five types of labour platform: platforms mediating location-based work (e.g., transportation, care, domestic work); microtask platforms (e.g., Amazon Mechanical Turk, Clickworker); freelance platforms (e.g., Upwork); contest platforms (e.g., 99designs); and content marketplaces and streaming platforms (e.g., Twitch, YouTube). At the same time the definition aims to exclude ‘non-labour’ platforms, e.g., for social media (e.g., LinkedIn), capital rental (e.g., Airbnb), job search (e.g., Monster.com), and goods (e.g., Ebay, Etsy)—insofar as they are not operating as labour platforms (consider e.g. Airbnb’s ‘Experiences’ section, which intermediates location-based work). The definition includes platforms that allow ‘providers’ to offer (or offer on providers’ behalf) services/goods to customers, process payment, entail a specific provider contract, and do at least one of: directing provision/production of offered services/goods, setting/bounding prices, managing customer relationships, evaluating work, or marketing services/goods under its own brand; and excludes platforms aiming to facilitate employment contracts between users (i.e., job search platforms).

The paper then examines the question of working time. This is motivated specifically by ‘multi-apping,’ a practice—common in self-employed transportation and delivery platforms—where workers ‘log on’ to multiple platforms simultaneously to wait for work, then, after receiving a task from one platform, ‘log off’ from the others. While traditionally, ‘waiting time’ is remunerated working time, ‘multi-apping’ means a worker could receive multiple wages simultaneously while ‘waiting.’ Employer representatives have understandably protested this. Additionally, the meaning of ‘waiting time’ in online platform work (e.g., microtasking, online freelancing) is unclear. The paper draws on research and case law to establish that while ‘waiting time’ creates value and should be remunerated, platforms for which workers ‘multi-app’ can establish data-sharing procedures to share the cost of paying a single ‘waiting wage.’ Finally, the paper introduces a distinction between ‘waiting time’ and ‘search time’—the latter of which may not always be working time.