Though many revel in the flexibility and freedom associated with gig work, its appeal has diluted in recent times. This is owing to the growing discontentment among gig workers about falling wages, unsafe working conditions, information asymmetry in inexplainable, opaque algorithms, exploitation of labor and lack of labor protections. Gig workers are legally unprotected as they are considered independent contractors rather than employees. Therefore, gig workers are not guaranteed a minimum wage and are not even eligible for workers' compensation and paid holidays. They are usually underpaid, uninsured and non-unionized. So, flexibility in gig jobs obviously come at a cost. No matter which country one lives in, making a living out of a gig job has proved to be challenging in recent times.
With COVID-19, gig economy is in bit of a mixed bag. Gig workers are hit very hard by the pandemic and many left unemployed, causing a huge job bloodbath in the gig industry. Take Uber for example. Due to travel restrictions, Uber drivers are left with few people to travel and as a result many drivers are either living on a meagre income or literally out of job. But its food delivery segment is coping quite well, with more people staying home and ordering food deliveries. These app-based food delivery workers have been a godsend lifeline for many of us staying home during lockdowns, that they made sure meals were brought to our tables safe and smooth. But their selfless and tireless contribution in the fight against COVID-19 has not been adequately celebrated by the media or the general public. The growing precarity and plight of their working conditions have also been overlooked by their indifferent big tech masters and policy makers.
Mass protests calling for better pay and demanding gig workers' right to organize have been a ubiquitous sight in the year 2021. Legal battles have also been brought in various jurisdictions from US, UK, France, Netherlands, Spain to China and India over labor issues in the gig industry. As gig workers are treated independent contractors, no social security entitlements and basic labor protections are provided to these workers. This raises a question of greater public and constitutional importance; particularly whether governments should step into regulate the gig economy to ensure labor rights to gig workers. Now there is a global labor movement demanding governments and tech giants to recognize gig workers as employees rather than independent contractors, which would make workers entitled to existing social security benefits. At the same time, a rigorous multi-million dollar propaganda is being carried out by tech aggregators to neutralize the labor movement.
Silicon Valley made headlines last week when California's Supreme Court in Castellanos v. State of California ruled a ballot measure referred to as Proposition 22 excluding app-based drivers from state's worker classification law is unconstitutional. It held Prop 22 violates the state constitution as it limits the state legislature's plenary power to include app-based drivers within the ambit of workers' compensation law, Assembly Bill 5. Prop 22 exempts tech platforms from complying with fundamental employment laws. Prop 22 was approved by Californian voters in November 2020 and it was the result of $200 million propaganda carried out by Silicon Valley tech giants in the lead up to the vote. However, despite the ruling, Uber has confirmed its position that while the outcome of their appeal against this ruling is pending, they consider Prop. 22 to be in effect.
Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) was the California's law prior to ballot measure Prop 22. Following Dynamex ruling, in 2019 Californian state legislature signed into law AB 5 requiring gig drivers to be classified as employees instead of independent contractors. Dynamex introduced ABC test to determine the status of employment. If a worker is (A) free from the employer’s control; (B) performing work outside the usual course of the employer’s business; and (C) independently established in a trade or business to perform the work assigned, he is an independent contractor. Failure to prove any one of the three parts of the test is conclusive of the fact that the worker is an employee.
In a recent ruling, the Supreme Court of UK considered the employment status of Uber drivers. The case is Uber BV v Aslam, where the court rejected Uber's arguments that their drivers are independent third party contractors, and held that under UK employment law, Uber drivers are classified as 'workers' not self-employed independent contractors, entitling them to work benefits such as minimum wage, paid leave and pensions. However, according to the judgment they are not employees, but only 'workers'. The court considered the 'control factor' and elements of 'subordination' and 'dependency' in the contractual relationship between Uber and its drivers. It emphasized that contract should not be the starting point of consideration. Instead, one must look at the commercial reality of the relationship in determining whether a person falls within the type of relationship the legislation intends to cover. Court also observed that Uber exercises a tight control over its drivers, keeping them at its beck and call under dictated contractual terms. It was also noted that Uber does not permit substitution of drivers.
However, under English law, a worker does not mean the same thing as an employer. In UK, an employee can bring an unfair dismissal claim before an employment tribunal whereas a worker can only bring a discrimination claim. However, 'workers' are entitled to national minimum wage and workplace pensions. Accordingly, after the ruling, Uber drivers enjoy a minimum wage and are entitled to a pension.
In September 2021, Uber UK revealed its plan to roll out a pension scheme under which Uber contributes 3% of a driver's earnings while drivers can contribute a minimum of 5% of their earnings. Thus, Uber BV v Aslam within a matter of few months since Feb 2021, has had far-reaching legal implications for reshaping the gig economy in UK. This judgement will be of persuasive authority for other jurisdictions grappling with similar legal battles over gig workers' labor issues.
The 2018 landmark ruling in Pimlico Plumbers Ltd. & Anr. V Smith is another eye-opening judgement where the Supreme Court ruled that despite the plaintiff had been signed into a contract under the garb of 'consultant', he is in fact a worker, not a self-employed independent contractor. Court observed that the work assigned to him is an obligation of personal performance and the company exercised greater control over his work that it required him to work a minimum number of hours, to wear a company branded uniform, to lease a van with Pimlico’s logo and carry company identity card. The court also commented that plaintiff did not enjoy freedoms available to a self-employed person and could no way provide his services to any other company while on this job.
A 2017 ruling made by European Court of Justice in Asociación Profesional Elite Taxi v Uber Systems Spain also deserves a brief mention here. In that case ECJ held that Uber company must be classified not as 'an information society service' but as a transport company. This ruling undermined Uber's much touted argument that it is merely playing the role of the aggregator, connecting independent drivers with customers on a digital platform.
Indian gig workers move Supreme Court seeking social security benefits.
On 21st September the Indian Federation Of App Based Transport Workers (IFAT) and two 'Ola Cabs' and 'Uber' drivers filed a PIL seeking intervention of the Supreme Court to secure social security benefits such as pension and health insurance for gig workers, alleging that depriving them of decent working conditions and social security benefits is a violation of fundamental right to life and right against forced labor. The petitioners argue that big tech platforms and gig workers have a jural employer-employee relationship that of a master and a servant, and gig workers fall into the definition of workman within the Workmen's Compensation Act 1923, the Industrial Dispute Act, The Unorganized workers' social security act, 2008 amongst a few other legislation.
Petitioners also demands that despite there being no employment contract, that they be classified as unorganized workers or wage workers within the meaning of Sections 2(m) and 2(n) of the Unorganized Workers Social Welfare Security Act, 2008 which will entitle them to certain benefits such as health insurance, maternity benefits, pension, old age assistance, disability allowance. The petition alleges that refusing to recognize them as 'workers' violate the fundamental rights enshrined in constitution relating to right to equality before law (Article 14), protection of life and personal liberty (Article 21) and prohibition of traffic in human beings and forced labor (Article 23).
In India, the Code on Social Security (2020) is the only legislation which provides for welfare of gig workers. But the Code is yet to be implemented. Under the Code, a National Social Security Board comprising of representatives from aggregators and gig workers, is sought to be established to oversee the welfare of gig workers. The Union government is also mandated to establish a social security fund for this purpose.
Chinese government in its attempt to create a fair society and narrow widening income disparities recently pushed its gig tech giants to sign labor contracts with their workers and create unions for them. These unions are however subject to the All-China Federation of Trade Unions (ACFTU). ACFTU is the only permissible labor union in China. It mainly represents interests of Chinese Communist Party and is fundamentally different from workers' unions in other countries. Chinese workers' unions do not have meaningful collective bargaining powers. In the absence of meaningful collective bargaining power, tech companies are free to dictate exploitative and unfavorable terms to workers.
In August 2021, Chinese Supreme People’s Court and Ministry of Human Resources and Social Security in a joint statement stipulated that '996' work policy, where people work from 9 a.m. to 9 p.m., six days a week, is illegal. This labor protection extends to all workers in all industries including gig workers who were mostly likely working 996 hours. Until recently, this extreme brutal work culture was considered as a blessing by many Chinese tech tycoons. This change in work culture is influenced by the 'tang ping' or 'lying flat' movement gaining traction among Chinese youth.
Going beyond 'employment status', Spanish gig workers are now taking on algorithms.
In September 2020, Spanish Supreme Court held that the Spanish delivery app Glovo must recognize a 'presumed work relationship' with its drivers who must be treated as employees, not as self-employed workers. By converting the judgment into legislation, Spanish Congress in August 2021, approved riders' law recognizing gig drivers as employees, giving them access work-regulating algorithms. This is the first legislation in Europe which requires gig companies to disclose their algorithms and AI systems. In gig industry, workforces are handled remotely by means of dehumanized algorithm management. Workers are deprived of access to personal data generated by them. This restricted access to data is what makes the power imbalance between platform companies and gig workers. Algorithms are what big tech companies use to exert control over workers in making unpredictable decisions as to how often a worker gets work and how much he is to be paid. In ride-hailing platforms, algorithms track drivers' performance rate, acceptance rate, cancellation rate of rider requests and fraud probability score (Here, fraud score doesn't have criminal connotations, but merely monitors the propensity of drivers to break platform rules), and they penalize, impose escalating 'timeouts' and in some cases even ban drivers from platforms.
EU's General Data Protection Regulation (GDPR) is the only other legislation that addresses the issue over automated algorithm decisions. Article 22 thereof states that 'data subjects' have the right not to be subject to a decision made solely by automated processing without human oversight. GDPR is frequently resorted to in many European litigations filed by gig workers to compel platform companies to give their workers access to data as a means of explaining reasons for the automated decisions processed solely by algorithms without human intervention.
What should governments do?
Government intervention is critical at this juncture to ensure gig workers get their fair share. But policy makers are buried in their own government businesses trying to untie the pandemic-driven economic crisis, and they are keeping their heads in the sand over a lot of labor issues these gig workers struggle with on a day-to-day basis. The simple legal argument that there is no contract of employment between gig companies and millions of their workers should not let these big tech giants go about their business unregulated. They should not be allowed to take their hands off ethical responsibilities that come along with being a master. Looking at the recent legal developments in UK, US, France, Netherlands, Spain, India and China, there is a clear consensus that gig companies must contribute for worker safety, minimum wages and other social security benefits.
As a first step in assuring labor rights to gig workers, governments must introduce legislation to bring in gig workers within the legal ambit of labor protections already made available to traditional employees. This must be done by conferring employee status to gig workers. Secondly, governments should consider enacting strong data protection laws similar to EU’s GDPR in order to break data monopiles enjoyed by gig companies. Data is the power in this digital age. Empowering gig workers with access to algorithm data can certainly help tilt the balance in their favor.
Food for thought.
Any future labor regulation governing gig economy should attempt to strike a balance between healthy growth of platforms and protection of labor rights of gig workers. This requires innovative governmental policies. The ability of platforms to offer flexible working arrangements should not be compromised by pressing them to accept all their workers as employees. Rather workers should be conferred employee/worker status only if commercial realities of their work engagements with the platforms justify such a recourse. Otherwise, millions of gig workers who do not qualify for employee/worker status would have to forgo flexibility and workplace freedoms. They would have to be given pensions and insured for their occupational safety. Such an unwise move will have harsh economic ramifications on tech firms already on the verge of collapse due to economic troubles created by the pandemic. It would also drive up operating costs and financially burden the entire business model of gig economy. Therefore interests of tech platforms and labor rights of gig workers should be weighed in carefully before governments adopt any legislative measures to reign in the indifference and authoritarianism shown by big tech masters in the treatment of their workers.
No comments:
Post a Comment