The European Commission has published a draft directive (the “Draft”) that aims to improve working conditions for those in the so-called “digital work platforms” (or “gig”) economy.
This reflects the exponential growth of platform or “gig” work in various sectors in recent years and the growing demand for better legal protections for workers in the industry. It also follows the Court of Appeal’s recent decision in Karshan v Revenue Commissioners, in which the court found that while the written contract terms are not decisive for employment status, they are vital and should be respected in the absence of specific evidence that they do not represent the reality of the agreement reached between the parties.
Most of the commitments under the draft are limited to “digital work platforms”, which are defined to include only organizations that remotely and electronically match individual demand for work with an available labor supply. Therefore, most employers will fall outside the scope of the draft, as it only applies to organizations that match individual customer requests remotely and via electronic means with available workers, e.g. B. in the food delivery sector.
The proposal has the following specific objectives, which we will examine in turn:
- to ensure that the employment status of platform workers is properly classified;
- ensuring fairness, transparency and accountability in the algorithmic management of platform workers;
- improving transparency in platform work; and
- to strengthen and improve enforcement of applicable regulations.
employment status
The draft calls on member states to ensure the correct determination of the employment status of platform workers according to national definitions.
The draft includes all persons in the EU who have or could have an employment relationship with a digital work platform. Crucially, if a platform exercises control over the work in at least two of the following aspects, it carries a presumption of employment:
- the determination of remuneration levels/limits;
- establishing rules related to behavior in the workplace, appearance, etc.;
- the monitoring of work performance, including by electronic means; and or
- Mutual obligation and limitations on workers’ ability to represent/delegate to others.
This assumption can be refuted with the burden of proof on the digital work platform and the focus on the content and the actual work performance regardless of the written or verbal designation by the parties in a contract. This can be contrasted with the comments in the Karshan case.
To raise awareness of their rights among platform workers, the draft also requires that information about the rebuttable presumption be made publicly available to them and that national authorities develop guidance in this regard.
Algorithmic Management
The GDPR sets a clear framework for data processing and offers limited protection against automated decision-making in Article 22. However, it allows more specific rules in the employment context and the draft does this for algorithmic management in platform work. By “algorithmic management” we mean the use of automated systems by digital platforms, for example to assign tasks, monitor performance and make other decisions related to platform workers.
The draft envisages that platforms will provide workers with concise, understandable and transparent information about automated monitoring systems from day one, as well as explanations by a designated contact person for decisions made by automated systems or supported by automated systems that “significantly affect work”. “. Conditions. It also mandates human monitoring of the impact of such systems on working conditions, as well as human review and written justification for major decisions such as: B. Decisions to suspend an employee’s account or refuse compensation for work performed.
Importantly, the above protections regarding data processing in algorithmic management apply to all platform workers, including those without employment, such as B. Self-employed or others. While a welcome extension of protections, the draft’s failure to capture workers in more traditional workplaces has drawn criticism as the pandemic catalyzed a shift to remote work and the use of algorithmic management tools beyond platform work.
The draft could significantly impact collective consultation in the platform economy as it provides workers with vital information about automated systems. Workers are currently required to rely on individualized privacy rights to challenge algorithm-based decisions, and indeed platforms in some jurisdictions have recently attempted to characterize such data subject access requests as coordinated abuses of rights by union officials. The draft was also accompanied by draft guidelines on collective bargaining rights for the self-employed.
Transparency in platform work
Digital labor platforms must publish and regularly update information on the number of workers, their employment status and working conditions, about which authorities and workers’ representatives have the right to request further information. Public bodies will also be given new powers to order platforms to disclose evidence. Digital labor platforms need to provide, on their own digital infrastructure or other effective means, ways for platform workers to communicate with each other and with their representatives.
enforcement
Enforcement of the Directive is the responsibility of both the competent supervisory authorities and the courts. The draft includes safeguards against punishment, dismissal or other adverse treatment by digital platforms in retaliation for claims under the Directive. The above transparency obligations will support Member States’ obligations to ensure effective remedies, including through representative legal actions taken by those with “a legitimate interest in defending the rights of individuals performing platform work.
Final remarks
The draft could make the clarity brought by the decision in Karshan short-lived as platform employers face a new wave of regulation. The proposed directive is still in its infancy and it is expected that it will take some time before the draft is finalized and national legislation is required to implement its provisions. Still, the current draft is a focused and determined attempt to regulate the algorithmic management of workers in the platform economy and curb the alleged avoidance actions of some in the industry. It is to be expected that the draft will be subject to further amendments and in any case will allow individual Member States to enact more extensive regulations at national level if they decide to do so.
