Digital platform economy tests the limits of employment law

Photography: Dolph Cantrijn

Uber has been cruising Dutch roads since 2014, Deliveroo joined a year later, in 2017 Professor of Employment Law Mijke Houwerzijl was one of the first in the Netherlands to publish about platform work, and in early 2019 she was approached to conceptualize and write a book about it. Instituut Gak, an investor in social security and labor market research, sensed the need for such a book among policymakers, employment lawyers and other professionals, and agreed to fund the project. For Houwerzijl, the speed with which this topic was picked up was a first. “Legal researchers normally reflect on societal developments that have progressed further, but now it’s already happening with the platform economy still in its infancy,” she relates.

The book that eventuated was a co-editing project Houwerzijl carried with her colleagues Nuna Zekić and Saskia Montebovi about the effects of the platformization and algorithmization of work on the social security of employees. Or are these drivers, riders, and hired hands self-employed? This is the core problem, Houwerzijl explains. By treating platform workers as self-employed workers, the platform companies that hire them don’t carry such risks as occupational disability, illness, and irregular working hours. The contractual position of self-employed workers is governed by private law and competition law, with the latter aiming to prevent large companies from abusing their position. It is only when platform workers are employees that they are entitled to protection through employment law and social security law.

“In the book we approach the problem from both perspectives, all the time putting the worker center stage,” Houwerzijl says. Each chapter represents a different discipline. “Such a broad approach allowed us to identify gaps and come up with solutions. Despite the subject continuing to evolve, we provide many building blocks for solutions.”

New rules?

Not all platforms are alike, co-editor Nuna Zekić adds, nor are the problems and solutions. Platforms come in three main types: those that facilitate contact between consumers and service providers, like gig platform werkspot.nl; those that broker supply and demand, like child minding service CharleyCares; and those that provide services, like Uber and Deliveroo. And speaking of these two companies, their status has been the bone of contention in several Dutch court cases, with the courts ruling that they are employers and must therefore comply with employment law.

“The key question is this: do we need new rules for the platforms or will it suffice to interpret existing rules differently?” Houwerzijl explains. This is where the algorithms used by the platforms come into play: these algorithms can be used to give instructions to workers, to send them to do a job or stand them down, to monitor them, and to gauge customer satisfaction. The question then is whether these uses constitute employer control. If so, the working relationship qualifies as one of employment. But as the algorithms are mostly not publicly accessible, it is hard to get a clear picture.

Besides, what about the privacy of workers and the protection of their data on a digital platform? And what qualifies as working time and what doesn’t when it comes to, for example, being logged in or waiting for a customer? Houwerzijl: “Big platforms use their smarts: they shift the risks to the platform workers.”

The role of AI

Meanwhile, artificial intelligence is also, and increasingly, having an impact on the traditional employee. The book addresses the use of algorithms in selection procedures. But there’s also the software many employees used to work from home in the Covid-19 pandemic: how much can the employer see? Then again, working from home did make the crisis more manageable. And in many situations remote working can be a blessing, for example, for employees who are disabled or live in out-of-the-way areas. “Or consider the meeting I had this morning with an FNV labor union rep about working hours in healthcare,” Zekić relates. “The lack of control of care professionals over their working hours is a real issue. A self-scheduling app might really come in handy.”   

One advantage of platform work is multi-jobbing: “stacking” numerous small jobs or combining permanent employment with freelance work. “If it’s a sideline, like many jobs students have, it’s usually fun to do,” says Zekić, who devoted a chapter to it. It means you don’t rely on the occasional job on the side for social security. “But what about working times, which tend to become tangled in multi-jobbing? That could easily become a matter of serious concern.”

Self-exploitation

One issue is that a great deal of platform work isn’t nine to five, but is done outside those hours. “So platform work isn’t really all that flexible,” Zekić concludes. One potential side effect is that the distinction between working time and private time fades, with self-exploitation lying in wait.

The Covid-19 pandemic has highlighted both the benefits and the burdens of platformization and algorithmization:  delivery apps became commonplace, people started working and studying online and from home, high-speed couriers entered the market, and many self-employed workers without a social safety net of their own struggled to make ends meet. Some temporary measures notwithstanding, the legislator has yet to implement structural legislative changes in aid of those workers who are at risk of getting the worst of the bargain, the researchers contend. The bills on social security for self-employed workers tabled by the ruling coalition (Rutte IV) are similar to those presented by the previous government (Rutte III), and decisions remain to be made. The conflicting interests are substantial – not in the least those of the big platforms and their business models.

Sustainable working relationships

Much remains to be done, that much is clear. For Zekić and Houwerzijl, first on the list is insurance for all flexible workers against accidents at work and occupational disability. It is up to the legislator to make this happen: legislation must be tightened and enforced, because otherwise the big platforms will just carry on regardless. They are strongly committed to preventing platform workers from being regarded as employees.

Zekić: “The ultimate goal is sustainable working relationships: these need not be permanent, but they should benefit both parties and help sustain the welfare state. It is up to all of us and huge numbers of self-employed workers won’t cut it.”  

Even so, it was being self-employed, or something like it, that used to be the norm for a long time. The track record of permanent contracts offering good employment and social security protection only stretches back about six decades. The book by Houwerzijl et al. shows that irregular work and its public regulation were already common in Western-Europe in the 12th century. How today’s sustainable type evolves is up to us.

Date of publication: 28 March 2022