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The ‘Uberization’ of the labour market: some thoughts from an employment law perspective on the collaborative economy

Abstract

New collaborative economy models are influencing existing businesses. The most visible examples of the collaborative/platform economy involve renting apartments, sharing cars (TNC) and the delivery of goods and services. Surveys reveal significant economic potential within the collaborative economy but also a large degree of uncertainty regarding rights and obligations (liabilities, protection of customers, regulatory framework, tax and social security treatment of the income derived, employment status,…). But the collaborative platform economy also increases competition, changes consumer behaviour and creates challenges. The subject is high on the political agenda of the EU’s Digital Single Market Strategy and an impressive number of court cases are being launched to clarify things.

This article focuses on the employment law structure of the collaborative economy/platforms from an EU perspective.

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Notes

  1. This article is updated until 19 August 2016; any developments after that date were not taken into account.

  2. The collaborative economy is defined as initiatives based on horizontal networks and the participation of a community; it is built on ‘distributed power and trust within communities as opposed to centralized institutions’ (Rachel Botsman), blurring the lines between producer and consumer.

  3. From a European perspective the collaborative economy forms part of the Single Market Strategy and also the Commission’s Digital Single Market Strategy.

  4. TNC = Transportation Network Company.

  5. Eurofound [2], pp. 1–2.

  6. Exceptions include interim work, ICT-based mobile work and voucher-based work for which regulatory frameworks have been established in many jurisdictions to avoid abuse or to legalise undeclared work.

  7. Some countries also have developed an intermediary status between employee and self-employed like the UK, Portugal, Austria, Italy, …

  8. See Sect. 2.8.

  9. European Commission [6]. See also Case C-66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR I-2121, paras. 16 and 17; Case C-85/96 Martinez Sala v Freistaat Bayern [1998] ECR I-2691, para. 32.

  10. Perulli [10].

  11. Perulli [10], p. 13.

  12. Also called ‘indication clustering’; Perulli [10]; Supiot [13].

  13. Perulli [10], pp. 8, 10; Supiot [13], p. 12 (consultation of 25 March 2009).

  14. ‘Loi Madelin’, 11 February 1994, Article L8221-6—modified by the Law n°2014-626 of 18 June 2014, Art. 27 and modified by the Law n° 2015-991 of 7 August 2015, Art. 15 (V).

  15. See Sect. 3.6.

  16. Evaluation of the Law of 27 December 2006 and the Law of 25 August 2012 in relation to the nature of employment (arbeidsrelatiewet-loi sur les relations de travail)—Report of the SIOD of 18 September 2015.

  17. See Sect. 3.1.

  18. Cour de Cassation/Hof van Cassatie.

  19. Law of 27 December 2006, OG 28 December 2006, Art. 328 and following.

  20. Labour Court of Appeal Brussels, 9 December 2014, n° 2013/AB/877, JTT 2015, n° 1213, 134.

  21. Law of 25 August 2012, OG 9 September 2012.

  22. For works on immovable property.

  23. See Sect. 5.6 for a practical application in the Uber case—these criteria are mainly based on economic dependence.

  24. See Sect. 5.6.

  25. Some countries have developed a third status. For example, the UK employment law has evolved to provide three general categories of employment status: employee, worker and self-employed. The ‘worker’ status is a mid-tier status affording less than the employee status but still significant protection.

  26. I refer also to the concept of worker developed by the CJEU and the EU Commission in Sects. 2.3 and 2.4.

  27. European Commission [4], p. 35.

  28. As already mentioned in some EU States the activity might even be qualified as another employment status; some countries have developed an intermediary social status like the UK, Portugal, Austria, Italy, …

  29. The same questions can be raised for people working in relation with other platforms (delivery, house maintenance, etc.).

  30. Labor Commissioner of the State of California, Barbara Ann Berwick/Uber Technologies Inc., 3 June 2015, case n° 11-46739 EK also referred to as the Berwick case.

  31. Bureau of Labor and Industries [1].

  32. Labor Commissioner of the State of California, Barbara Ann Berwick/Uber Technologies Inc., 3 June 2015, case n° 11-46739 EK, pp. 4–5.

  33. The claim was filed on 16 September 2014; in the meantime, Uber has adapted their contracts several times.

  34. Yellow Cab Cooperative vs Workers Compensation Appeals Board case (1991-226 Cal. App 3d 1288).

  35. Wall Street Journal [16].

  36. Reuters [12].

  37. ‘College van Beroep voor het bedrijsfleven’, 8 December 2014, AWB 14/726.

  38. The Wet Personenvervoer 2000 (Law regulating the transport of passengers), 6 July 2000, available at: http://wetten.overheid.nl/BWBR0011470/2015-12-15.

  39. ‘College van Beroep voor het bedrijsfleven’, 8 December 2014, AWB 14/726, p. 6.

  40. Case C-434/15 Asociación Profesional Élite Taxi v Uber Systems Spain, S.L., Request for a preliminary ruling from the Juzgado Mercantil No 3 de Barcelona (Spain) lodged on 7 August 2015, OJ C 363 of 3 November 2015, pp. 21–22.

  41. Directive 2000/31/EC (‘e-Commerce Directive’); for a full review of these aspects, which are of a regulatory nature, I refer to Geradin [8].

  42. See Art. 2(a) of Directive 2000/31/EC (‘e-Commerce Directive’) and Art. 1(1)(b) of Directive 2015/1535. See also Annex I to that latter Directive for an indicative list of services not covered by this definition.

  43. See Art. 4 of the e-Commerce Directive.

  44. See Arts. 2 and 3 of the e-Commerce Directive. The country of origin principle for the freedom to provide information society services cross-border can only be derogated from when there is a threat or a serious and grave risk to undermine the following four objectives: public policy, protection of public health, public security, including the safeguarding of national security and defence and protection of consumers. In such a case the national measures in question must still be proportionate and certain procedural conditions (including notification to the Commission) must also be respected.

  45. European Commission [5], pp. 5 and 6.

  46. Geradin [8], p. 20; for a full review of these aspects, which are of a regulatory nature, I also refer to this paper.

  47. In ‘College van Beroep voor het bedrijsfleven’, 8 December 2014, AWB 14/726 it was decided otherwise—see Sect. 4.10.

  48. For a full analysis of the difference between digital platform and transportation services, I refer to Geradin [8].

  49. Labor Commissioner of the State of California, Barbara Ann Berwick/Uber Technologies Inc., 3 June 2015, case n° 11-46739 EK.

  50. This was also defended by Prof. Dr. De Vos at a symposium on ‘(Arbeids)recht, Uber en de deeleconomie-evolutie of recht’, 25 February, University Ghent.

  51. ETUC [7], p. 8.

  52. See Sect. 4.12.

  53. See Sect. 2.3 the criteria set by the CJEU to determine the status of worker; however national legislation determines the nature of employment.

  54. European Commission [5], p. 12.

  55. Case C-268/99 Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie [2001] ECR I-8615.

  56. For more details on the actual assessment of ‘genuineness of work’ by CJEU, as well as in the Member States (e.g. using earning or hour-based thresholds) in the context of free movement of workers, see European Commission [3].

  57. See Sect. 5.3.

  58. The Law of 24 July 1987 on the putting at disposal of staff, OG, 20 August 1987, Art. 31 and subsequent.

  59. Nerinckx [9], pp. 4 and 5; I will not elaborate further on this here but the subject is certainly interesting to be further analysed.

  60. See Sect. 3.5.

  61. In most countries having introduced a presumption of subordination, the number of criteria are limited; Belgium developed 9 criteria.

  62. Recode [11].

  63. Wall Street Journal [16].

  64. The Independent [15].

  65. European Commission [5].

  66. The Hamilton Project [14].

References

  1. Bureau of Labor and Industries: Advisory Opinion of the Commissioner of the Bureau of Labor and Industries of the State of Oregon Regarding the Employment Status of Uber Drivers (14 October 2015). Available at http://media.oregonlive.com/commuting/other/101415%20Advisory%20Opinion%20on%20the%20Employment%20Status%20of%20Uber%20Drivers.pdf

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  6. European Commission: Communication from the Commission to the European Parliament, the Council, the European Economic and social Committee and the Committee of the Regions—Reaffirming the free movement of workers: rights and major developments, COM/2010/0373 final, Brussels, 13 July 2010

  7. European Trade Union Confederation (ETUC): ETUC resolution on digitalisation: “towards fair digital work” (16 June 2016). Available at https://www.etuc.org/documents/etuc-resolution-digitalisation-towards-fair-digital-work#.V8WGM_mLTcs

  8. Geradin, D.: Online intermediation platforms and free trade principles—some reflections on the Uber preliminary ruling case (5 April 2016). Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2759379

  9. Nerinckx, S.: The December 2012 Programme Act: An overview of some items! Kluwer, Expat News, n°2 (2013)

  10. Perulli, A.: ‘Economically dependent/quasi-subordinate employment: legal, social and economic aspects’, report for the DG Employment and Social Affairs, Brussels, European Commission (2003)

  11. Recode, DeAcmicis, C.: Homejoy Shuts Down After Battling Worker Classification Lawsuits (17 July 2015). Available at http://www.recode.net/2015/7/17/11614814/cleaning-services-startup-homejoy-shuts-down-after-battling-worker

  12. Reuters, Labbé, C.: French court fines Uber, execs for illegal taxi service (9 June 2016). Available at http://www.reuters.com/article/us-france-ubertech-court-idUSKCN0YV1DQ

  13. Supiot, A.: Beyond Employment: the transformation of labour and future of labour law in Europe, Final Report, Brussels, European Commission (1998)

  14. The Hamilton Project: A Proposal for Modernizing Labor Laws for Twenty-First-Century Work: The “Independent Worker” (December 2015). Available at https://www.brookings.edu/wp-content/uploads/2016/07/modernizing_labor_laws_for_twenty_first_century_work_policy_brief.pdf

  15. The Independent, Rodionova, Z.: Deliveroo contracts ‘written to scare couriers from going to court over workers’ rights (25 July 2016). Available at http://www.independent.co.uk/news/business/news/deliveroo-contracts-written-to-scare-couriers-from-going-to-court-over-workers-rights-a7154711.html

  16. Wall Street Journal, Bensinger, G., Weber, L.: U.S. Judge Rejects Uber’s Proposed $100 Million Settlement With Drivers (18 August 2016). Available at http://www.wsj.com/articles/u-s-judge-rejects-ubers-proposed-100-million-settlement-with-drivers-1471560362

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Nerinckx, S. The ‘Uberization’ of the labour market: some thoughts from an employment law perspective on the collaborative economy. ERA Forum 17, 245–265 (2016). https://doi.org/10.1007/s12027-016-0439-y

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Keywords

  • Uberization
  • Collaborative platforms
  • Collaborative economy
  • Employment status