There is a good reason why labour lawyers all over the world seem so entrapped in questioning digital work platforms: Here are business models that market themselves as “innovative” or even “disruptive”, and at the same time make use of cheap labour by classifying workers as ‘independent contractors’. Hardly ever before has exploitation and precarious work been so visible to citizens.
The labour law and policy debate, nevertheless, is divided by two lines of questioning. Look at the FairTube campaign, for example. It was launched when the YouTubers Union joined forces with the German metalworkers’ trade union IG Metall. The campaign started off by making claims of ‘false employment’ and appealing to labour rights in pressing YouTube to address workers’ grievances. Nevertheless, the primary focus of the demands weren’t labour and employment rights, but fairness, protection of data, and transparency.
This aspect of the FairTube campaign represents a discursive phenomenon permeating current debates on digital platform work. Even authors who strongly defend classifying digital platform work as employment rarely support an application of employment law in the strict sense, but rather advocate specific rights and obligations. This is also reflected in the EU Commission’s Proposal for a Directive on improving working conditions in platform work which has a chapter on employment status and two other chapters on algorithmic management and transparency. In other words, relevant policy debates often treat the question of who counts as an employee and the matter of regulating specific rights and obligations for digital platform work as two separate issues.
Labour law and organisational theory
My book on digital work platforms takes this as the starting point for a conceptual search for the link between employee classification and the rights and obligations that ensue from such classification. It follows the methodological cues of the typological method of labour law classification, which classifies work relationships according to the “primacy of facts”. This invites us to focus on the specific business model and work organisation at hand, instead of chasing after singular (and possibly arbitrary) attributes of the work relationship. Only by taking this approach seriously can labour lawyers prevent classification exercises from turning into nonsense; only the primacy of facts principle can effectively establish that ‘somewhere on the way some [legal] term will … be defined in non-legal terms.’
What characterises labour law is its concern with power imbalances. Of these many exist in a work relationship. Now labour law is mainly concerned with those very power imbalances that are created through the contract and in the contractual relationship, i.e. the power held by the employer, or, in other words, by the company making use of the work in order to create products or services it offers on markets. These power imbalances arise out of workers being made part of a work organisation.
As a consequence, labour law has a lot to learn from organisation theory, which has for a long time been working on explaining and describing the differences between vertically integrated hierarchical organisations and horizontally integrating (‘partial’) organisations. And digital work platforms are atypical if looked at from the point of view of organisation theory. While employers in the strict sense control the person of the worker by controlling the complete work process, digital work platforms mainly predefine and structure work activities. They usually do not hold individual workers directly accountable for their activities. Although digital platform workers are held in precarious situations and incentivised to follow the platform’s cues, many of them are formally free to choose when and how much they work. Workers are most importantly dominated by information asymmetry and invisible processes of assignment. Yet, there is one thing that market organisers have in common with typical work organisations: they shut workers off from free access to the markets of products and services. This makes it impossible for workers to effectively act as independent service providers, which is one of the main reasons why they should be covered by employment law. The organisational concept of ‘market organisers’ quite aptly describes these organisational practices of digital work platforms.
It is not a coincidence that it is these very features that courts have all over the world have invoked when confronted with digital platform work. Although not all of them explicitly said so, most of them had to be creative in order to be able to classify digital platform work as employment. And when looking for indicators for employment, most courts tend to address digital work platforms’ indirect mechanisms for governing workers rather than hierarchy and direct instructions.
The reach of regulation by way of labour law
Now, the same approaches that explain labour law classification of digital work platforms also contain the clue to consistent regulation. For they help us understand the limited role labour law has to play for the law of the labour market. The majority of the rights workers need to address their dependencies do not correspond to organisational power. Many are universal human rights (including equality rights) or general contractual rights (including minimum wage and certain protections against unfair termination); such rights should apply to any kind of work relationship, independently of status. After all, there is only a limited number of rights at work that are designed exclusively for employment, i. e. work organised by another; this concerns, in particular, health and safety, working time and professional development.
These will have to be reformulated to address indirect control and the social dynamics of virtual workplaces. Because labour law regulation is not only about establishing rights. It is also about assigning accountability and enforcing legal responsibilities. Here the specific organisational form of digital work platforms can and must be taken into account.
The place of labour law
Acknowledging the particular organisational form of digital work platforms as market organisers may help build consistent social policies and equivalent labour rights for digital platform workers; but digital work platforms are not a uniform phenomenon and the business models involved are in constant flux.
Regulation of digital work platforms requires embedding in a jurisdiction’s specific legal context. Moreover, it must always be thought of as part of a broader debate on law and political economy. The concrete roles played by digital platform work on different markets, in different regions of the world and in a specific time, are characterised by social policies, labour market segmentation and social welfare systems. After all, digital work platforms can only thrive to the extent that a contingent workforce exists.
However, labour law as a regulatory domain has an important role to play in these complex socio-economic environments. Due to its sensitivities to power imbalances and centuries of experiences in dealing with them, it has a lot to teach, in particular to digital law approaches. In general, at the interface of labour law and other regulatory domains, two features of labour law stand out: (1) the use of status for the framing of regulation, and (2) the recognition of collective organisation and resistance as integral components of the legal regulation of organisations.
Lessons from labour law for platform regulation
Firstly, the categories of employment (or market organising, respectively) are only linked to a limited set of rights and obligations, categories shape the world of work far beyond their immediate fields of application. With categories solidifying specific bundles of rights and obligations, classification effectively assigns a status. It is with good reason that employment status is used as a reference point not only in labour law, but also in other regulatory domains like tax law and social security. Creating a status is a way of institutionalising work and framing regulation.
Therefore, great care and foresight are needed to decide if the creation of a new status would be a useful regulatory instrument in a particular context. There are pros and cons of creating a new status for market organisers; any decision in favour or against a new status would have to take into account not only labour law, but also surrounding regulatory domains linked to the status. Nevertheless, and independently of these considerations, a status that really fits the specific organisational form of digital work platforms can provide transparency and greater legal certainty as to platform workers’ rights and obligations. Under the right circumstances, this can become a huge boost for enforcement, and also a point of reference for social identification and collective organisation of platform workers.
Secondly, there is a paradox with regard to enforcement – precariousness and the lack of enforcement happen to be mutually dependent. Labour law protection can only ever be effectively enforced if workers overcome their fear of using the law to defend their interests. Labour law can help create transformative situations, but precariousness can be a barrier against using it. Only solidarity and collective action provide effective ways out of this vicious circle. Digital platform workers have already contributed to proving this point. We have also seen diverse forms of resistance, trade union action and new social movements emerging against platform power. Today, rights to collective organisation, collective action and collective bargaining are among the most pressing issues for the labour law of digital work platforms. It is high time to act. That’s why, in the end, the Commission’s initiative for “guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons” is at least as important as its proposal for a Directive on platform work.
Professor Eva Kocher is a labour lawyer at the Law Faculty, European University Viadrina in Frankfurt (Oder), Germany. The text summarises more or less the main topics and conclusions of Digital Work Platforms at the Interface of Labour Law. Regulating Market Organisers, which was published this year by Bloomsbury.
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