There is a good reason labor lawyers around the world have been ensnared in questioning digital job platforms: Here are business models that market themselves as “innovative” or even “disruptive,” while profiting from cheap labor through profiling. workers as “independent contractors”. Exploitation and precarious work were rarely visible to the citizens.
However, the debate about employment law and policy is divided into two lines of questions. Look at the FairTube campaign, for example. It was launched when the YouTuber Union joined forces with the German metalworkers’ union IG Metall. The campaign began by making allegations of “fake hiring” and appealing for workers’ rights by clicking on YouTube to address workers’ complaints. However, the main focus of the demands was not labor and employment rights, but fairness, data protection and transparency.
This aspect of the FairTube campaign represents an episodic phenomenon that permeates current discussions of the digital platform’s work. Even authors who strongly advocate classifying digital platform work as employment rarely support employment law enforcement in a strict sense, but do advocate specific rights and obligations. This is also reflected in the EU Commission’s proposal for a directive on improving working conditions in the platform’s operation which contains a chapter on employment status and two other chapters on algorithmic management and transparency. In other words, relevant political discussions often treat the question of who counts as an employee and the question of regulating specific rights and obligations for the functioning of a digital platform as two separate issues.
Labor law and organizational theory
My book on digital work platforms takes this as a starting point for conceptual research on the link between employee classification and the rights and obligations of that classification. It follows the systematic references of the taxonomic method of classification of labor law, which classifies labor relations according to the “priority of facts”. This invites us to focus on the specific business model and organization of the work at hand, rather than the pursuit of individual (and perhaps arbitrary) features of the business relationship. Only by taking this approach seriously can labor lawyers prevent classification exercises from turning into nonsense; Only the fact-principle principle can effectively prove that he is somewhere down the road [legal] The term will be defined in illegal terms.
What distinguishes the Labor Law is its interest in imbalances in the balance of power. Of these there are many in a business relationship. Labor law is now mainly concerned with the power imbalances that arise through the contract and in the contractual relationship, i.e. the power held by the employer, or in other words, by the company that uses the labor in order to create the products or services it offers in the markets. These power imbalances arise from workers being a part of the labor organisation.
As a result, business law has much to learn from organization theory, which has long served to explain and describe the differences between vertically integrated hierarchical organizations and horizontal (“partial”) integrated organizations. Digital platforms are atypical when viewed from the point of view of organization theory. While employers strictly control the person of the worker by controlling the entire work process, digital work platforms pre-determine and structure work activities. They usually do not directly hold individual workers accountable for their activities. Although digital platform workers are kept in precarious situations and incentivized to follow the platform’s cues, many are formally free to choose when and how much they work. Information asymmetry and invisible hiring processes hold workers more critically. However, there is one thing market regulators have in common with typical labor organizations: They deny workers free access to markets for products and services. This makes it impossible for workers to operate effectively as independent service providers, and is one of the main reasons they are covered by the Employment Act. The regulatory concept of “market regulators” quite aptly describes these regulatory practices of digital business platforms.
It is no coincidence that these are the features that courts around the world have drawn upon when confronting the workings of the digital platform. Although not all of them explicitly state it, most of them must be creative to be able to classify a digital platform business as a business. And when looking for employment indicators, most courts tend to address the indirect mechanisms of DFPs for managing workers rather than direct hierarchies and instructions.
The reach of the organization through the Labor Law
Now, the same approaches that explain labor law classification for digital work platforms also contain evidence for consistent regulation. Because it helps us understand the limited role that labor law has to play for labor market law. The majority of rights workers need to address their dependencies that are not compatible with regulatory authority. Many are universal human rights (including equality rights) or general contractual rights (including minimum wages and some protections against unfair termination); These rights should apply to any type of employment relationship, regardless of the status. After all, there are only a limited number of rights to work designed exclusively for employment, that is, work organized by someone else; This particularly relates to health and safety, working time and professional development.
These will have to be reworked to address the indirect control and social dynamics of virtual workplaces. Because the regulation of labor law is not only about establishing rights. It is also about assigning accountability and enforcing legal responsibilities. Here one can and should take into account the specific organizational form of digital work platforms.
place of labor law
Recognizing the specific regulatory form of digital work platforms as market regulators may help build consistent social policies and equal labor rights for workers in digital platforms; But digital business platforms are not a uniform phenomenon and the business models involved are constantly changing.
Regulation of digital work platforms requires incorporation into the specific legal context of the jurisdiction. Moreover, it should always be considered as part of a broader discussion about law and political economy. The concrete roles played by the digital platform operating in different markets, in different regions of the world and at a specific time, are characterized by social policies, labor market segmentation and social welfare systems. After all, digital job platforms can only thrive to the extent that there is a temporary workforce.
However, labor law as a regulatory area has an important role to play in these complex social and economic environments. Sensitive to imbalances of power and several centuries of experience dealing with them, she has much to teach, particularly approaches to digital law. In general, at the interface of employment law and other regulatory fields, two features of employment law stand out: (1) the use of status to frame regulation, and (2) the recognition of group organizing and resistance as integral components of the legal regulation of organisations.
Lessons from labor law to regulate the platform
First, the categories of employment (or market regulation, respectively) are associated only with a limited set of rights and obligations, and the categories shape the world of work far from their immediate areas of application. Through categories that anchor specific bundles of rights and obligations, classification effectively defines a situation. For good reason, employment status is used as a reference point not only in employment law, but also in other regulatory areas such as tax law and Social Security. Creating a situation is a way of institutionalizing work and framing the organisation.
Therefore, great care and insight is required to decide whether establishing a new mode would be a useful regulatory tool in a given context. There are pros and cons to creating a new mode of market regulators; Any decision for or against a new status must take into account not only employment law, but also the surrounding regulatory areas associated with the status. However, regardless of these considerations, a situation that truly fits into the specific regulatory form of digital work platforms can provide greater transparency and legal certainty regarding the rights and obligations of platform workers. Under the right circumstances, this can become a powerful impetus for implementation, as well as a reference point for the social identification and collective organization of platform workers.
Secondly, there is a paradox regarding enforcement – instability and non-enforcement depend on each other. Employment law protection can only be effectively enforced if workers overcome their fear of using the law to defend their interests. Employment law can help create transformative situations, but instability can be a barrier to its use. Only solidarity and teamwork provide effective ways out of this vicious circle. The digital platform workers have already made this point. We’ve also seen diverse forms of resistance, union action, and new social movements emerging against the power of the platform. Today, collective organizing, collective action, and collective bargaining rights are among the most pressing labor law issues for digital labor platforms. It’s time to act. That is why, in the end, the Commission’s initiative for “Guidelines for the application of EU competition law to collective agreements relating to working conditions for self-employed individuals” is as important as its proposal for a directive on the functioning of the platform.
Professor Eva Kocher is a labor lawyer at the Faculty of Law, European Viadrina University in Frankfurt (Oder), Germany. The text more or less summarizes the main themes and conclusions of digital work platforms at the interface of labor law. Market Regulators Regulation, published this year by Bloomsbury.
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