The employment status of gig economy workers matters


Over the past few years labour lawyers have been grappling with the advent of the so-called ‘gig economy’ and its impact on the traditional employment relationship.

Do companies such as Uber and Postmates have sufficient control over their drivers and couriers? Are individuals accepting jobs on Amazon Mechanical Turk truly integrated into the business and economically dependant on it? Does Deliveroo share a mutuality of obligation with its riders to provide and accept work respectively?

These fundamental questions need to be addressed because most gig economy companies (with a few notable exceptions) deny the existence of employment relationships with their workers. This potentially leaves an ever increasing number of workers misclassified as independent contractors.

Misclassification not only impacts on workers’ incomes, but it also deprives them of essential workplace protections and social security benefits. Crucially, their ability to join trade unions and bargain collectively is also heavily curtailed.

This is why the employment status of gig economy workers matters. As the renowned legal scholar Sir Otto Kahn-Freund QC put it, the contract of employment is the cornerstone of the modern labour law system.

I believe Uber drivers are employees and are likely to be classified as such under some, if not most, legal systems. Uber’s multimillion dollar employee misclassification settlements indicate that the company probably thinks so too.

Recently, the New York State Department of Labor also determined that Uber drivers are ‘employees’. Not all of the focus has been on Uber either. The United States National Labor Relations Board acted on the presumption that Postmates couriers are employees. Other potentially precedent-setting cases are also pending before national and regional courts.

With courts and regulators attempting to eliminate the employment status grey area, there have been calls for legislators to take action. A proposal that is getting significant traction is the concept of an intermediate category of ‘independent worker’: a halfway house between independent contractor and worker. The idea is that these workers would qualify for a number of benefits and protections that employees receive, including the right to freedom of association, but not hours-based protections like the minimum wage or overtime.

Others have called for a framework allowing gig economy companies to let workers choose between arrangements: one where they exert control over a worker in exchange for certain protections, and the other where the worker has more freedom but assumes more risk. This would effectively create a hybrid workforce in the gig economy.

These proposals miss the point.

Introducing an intermediate category or allowing companies to pick and choose between arrangements would not achieve full labour protection – especially when real employment relationships are disguised.

Legislating for the gig economy alone would disregard the fact that platform workers share many similarities with those in other non-standard forms of employment. Indeed, gig work is a mere continuation of the trend towards casualisation at the expense of workers’ rights.

Further, these proposals are based on the flawed assumption that the gig economy has a uniform structure. How will a sector-specific law not complicate things by, for example, bunching together crowd work (TaskRabbit) and on-demand work (Uber)?

As we’ve seen in countries like the United Kingdom where a third employment category has existed for years, vulnerable workers are often excluded from vital employment protections like unfair dismissal.

Gig economy workers deserve better.

What is required is a presumption of employment status for platform workers. The legal tests for determining employment status may need some adapting to take into account, amongst other things, temporal aspects of digital work (do you get paid from the moment you turn on the Uber app or when you accept a job?) and workers switching between platforms. However, these issues are not insurmountable and can be addressed within existing labour law frameworks.

It would be a mistake to allow Silicon Valley to dictate employment policy. As one prominent trade unionist put it, the gig economy is all about using 21st technology while employing 19th century labour practices.

We must reject techno-determinism and take back the narrative on workers rights.