Labour and labour law in the time of the on-demand economy
| Autor | Emanuele Dagnino |
| Cargo | PhD Candidate at the University of Bergamo - ADAPT |
| Páginas | 43-65 |
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Technological advances assume different forms in the new reality of work. Many are the phenomena that, in association with technological innovation, are reshaping ways of working -inside or outside companies- and the very functioning of the labour market. Some examples, inter alia, are: job polarization, industry 4.0, consumer work and digital labor1.
In this context, a groundbreaking phenomenon, which is becoming increasingly relevant in the labour market of many advanced economies2, is known as, among other names, the on-demand economy. Defining the on-demand economy and distinguishing it from other phenomena occurring in the new reality of economic relations are not simple tasks. on the one hand, many other names are used to refer to this phenomenon, such as the «sharing economy»3, «collaborative economy»4and «crowd-employment». on the other hand, because this phenomenon is ongoing, its manifestations may change5.
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The on-demand economy, can be defined as the economic activity of immediately matching supply and demand of services and goods through a technological platform. i will use the expression with reference to the mediation of services in both the virtual and the physical worlds6. Different companies and services are included in this broad definition, ranging from Amazon Mechanical turk to Upwork and UPCOUNSEL, from Uber and taskrabbit to Medicast. Because the services mediated by the platforms, sometimes called «tasks», are actually work performances, it is important to analyse the dynamics of the on-demand economy from a labourlaw (in the broad meaning of regulation regarding the workers) perspective to (1) understand the working conditions in the on-demand economy, accounting for the actual legislative framework; (2) evaluate the capacity of the labour law, as it stands today, to address the challenges of this disruptive phenomenon; and (3) propose a possible policy approach in case of a need to reform labour regulation.
The first question to address in such an analysis is: who is in the on-demand workforce? regarding the composition of the workforce that provides services in the on-demand economy, the fundamental concept is that of heterogeneity. As noted above, the expression of on-demand economy has a broad meaning: it can be applied to refer to many different platforms, that mediates services of various types. They range, for example, from transportation (ride-sharing?) services (Uber), to design (Upwork), from «clickworking»7 (Amazon Mechanical turk) to repairs (taskrabbit), and from medical services (Medicare) to legal consulting (UPCOUNSEL).
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in this regard, the tasks mediated differ in terms of not only their localization (i.e., either the physical or the virtual world) but also the skills required, complexity, and levels of payment and autonomy8. Consequently, working conditions differ slightly with differences that emerge in relation to the tasks. The platforms also differ regarding the variety of tasks mediated: some platforms mediate only a specific task, while others mediate different tasks9.
By contrast, workers do not differ only with reference to the characteristics of the tasks. Another fundamental feature of the on-demand workforce composition relates to the hours dedicated by the workers to on-demand activities and the related economic expectations. From this perspective, it is possible to distinguish workers for whom work on demand is the sole or main activity and workers for whom it is a secondary activity10 11.
These differences affect worker behavior in terms of the use of the platforms and their needs and weaknesses. Based on these differences, workers are more or less exposed to the dynamics of the labour market created by the platform, with reference, among other market features, both to competition and to the entry costs.
Despite heterogeneity, i argue that, focusing on the functioning of the business model, it is possible to identify similar consequences for workers’ conditions in the different platforms. The economic model presents communal features in its diverse expressions, demonstrating similar dynamics, even if of differing intensities.
Nevertheless, the outcomes undoubtedly affect low wage workers, for whom «platform work» is the main activity, more severely: thus, they will be the principal workers referenced in the next section.
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While the debate concerning the so-called sharing economy and its capacity to provide good jobs has been structured around two argumentative poles, the one of autonomy/flexibility and the one of precariousness12, the following analysis of the on-demand economy will focus on the conditions of the workforce toward understanding whether intervention is required to make the model socially sustainable.
From a labour perspective, the fundamental feature of the economic model is the type of relationship established between worker and platform: there is no employment relationship between the company running the platform and the worker using the platform13. As the conditions of service of the platform often clearly state, the worker status is to be regarded as that of independent contractor, and the platform, as a mere intermediary14.
According to N. Zatz, three types of reason explain the concerns about «work outside traditional employment […]. in order of increasingly profound challenge to an employment-centered ‘idea of labour law’, these are misclassification, displacement, and exclusion»15.
Even if this classification is promoted by the companies, the characteristics of the work relationship, as has been outlined by the first commentators inside and outside the courts, make it difficult to include the relationship in the traditional categories of labour law16.
On the one hand, workers decide where, when and whether to work and possess a degree of autonomy regarding their ways of working, autonomy which varies from company to company. on the other hand, companies supply advice concerning how the work should be performed, establish reputational systems used to exert an overall control over the quality of the services provided, and decide whether and when to deactivate the workers’
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account on a given technological platform. Moreover, they may also determine the price of the service, as for example, Uber does.
By being classified as independent contractors, workers are usually ineligible for the rights and protections provided by labour law, because they fall outside the traditional coverage of labour regulations17. it is unsurprising that lawsuits seeking to obtain a reclassification of the relationship have abounded in recent months, most of all in the US18: many of the weaknesses of the on-demand workforce, in fact, derive from the inapplicability of labour regulations. While some of these actions have ended in the reclassification of workers’ status19and although some administrative boards have echoed this opinion20, i believe that the protection of workers in the new reality of work should not rely on reclassification because the work relationships in it are too variegated to be identified by the tests and because, in many legal systems (for example, the American legal system), there are different tests for different statutes21and in different states22.
As noted, the classification of workers in the gray area poses a major concern and problem to the enforcement of labour law. Currently, the situation seems to have worse-ned, and the definition of employee is increasingly removed from the elephant test Lord Wedderburn mentioned: the employment contract as «an animal too difficult to define, but easy to recognize when you see it»23. Maybe the classification of an employee is similar to a twin test: in some cases, it is impossible to distinguish an employee from an independent contractor. Thus, while some scholars have elaborated how the categories should be interpreted to better address the new work relationships24, in this article, i wonder if
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instead of applying and reinterpreting the outmoded tests of the 20th century, a legislative intervention could provide a preferable solution.
In this regards, still relying on Zatz’s argument, the conditions of the on-demand workforce can be analysed from the «displacement» perspective and from the «exclusion» perspective.
As for the displacement, «[i]nsofar as the nonemployment form offers advantages - including nonapplication of labour law - employees may be pushed aside […]. More subtly, labour standards within employment relationships may face downward pressure from the threat of such displacement»25. This argument could lead to antidisplacement rethoric as a justification for a legislative intervention.
Regarding the on-demand economy, it is still difficult to understand if the jobs promoted by the platforms are displacing more steady jobs. Even if some studies on the matter have been issued26, this kind of analysis needs a sector-by-sector approach and a better understanding of the link between platform economy and shadow economy. While in some sector it is possible to face displacement, in some other the on-demand economy «transfers transactions that were probably conducted in the shadow economy to the formal sector»27.
Instead of focusing on displacement, since «employment is underinclusive of the work relationships that merit protection or support»28, the article aims...
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