Platform work and traditional employee protection: The need for alternative legal approaches

Abstract

Paid work via digital platforms (so-called crowd work and gig work) is gaining in importance in Europe. Platform workers often suffer poor working conditions. Most platform companies treat crowd and gig workers as self-employed or independent contractors and, thus, normally protective labour laws do not apply. In response, initiatives have been taken through case law and legislation to extend the reach of the traditional employmentship to platform work. For example, the German Federal Labour Court (Bundesarbeitsgericht) reclassified and treated platform workers as employees in high-profile rulings, which are discussed in more detail below. The recently adopted EU Directive on Platform Work enshrines a legal presumption of employment for platform workers. Regulations have also recently been introduced in EU Member States that subsume platform workers under the concept of employee. However, as argued in this article, legal and judicial initiatives aimed at extending the employee status often have limits given the market dynamics and de facto adaptation and circumvention strategies used by platform businesses. Moreover, traditional labour law protection does not always seem to be suitable for tackling the complexities and peculiarities of the various types of platforms. The following theses therefore seem worth discussing: 1. Extending employee status to platform work appears promising if this is already anchored in the socio-economic reality and if a consensus can be reached between the social partners in this regard. An existing example is the Spanish riders’ law, which pursues a sectoral approach and was supported not only by trade union organisations but also by employers’ associations. 2. In addition, the creation of a substantial core of social rights for platform workers, irrespective of employment status, should be strongly focused and legally brought forward. The long-standing scholarly discussion about alternative regulatory approaches to forms of work in the legal grey area between dependent employment and self-employment should be revived and made fruitful for the new phenomenon of digital work platforms. 3. Thirdly, self-regulatory Corporate Social Responsibility (CSR) initiatives by platform companies to improve working conditions should be encouraged by legislators and policymakers. As will be shown later in this article, a wide range of CSR efforts by the platforms already exist. In order to counter the risk of window dressing, the platform business operators’ own initiatives should be made effective through appropriate flanking legal measures and public pressure.