The Labor Rights of Riders and Other Gig Workers

ARE THEY EMPLOYEES OR SELF EMPLOYED? IN THE ABSENCE OF A COMMON EU DEFINITION, RIDERS' UNREST IS INCREASING, FROM FRANCE TO THE UNITED KINGDOM, FROM BELGIUM TO ITALY

by Stefano Liebman and Antonio Aloisi, Dept. of Legal Studies, Bocconi
Translated by Alex Foti

Just as the streets of city centers are crowded with uniformed riders carrying meals in their fluorescent backpacks, the gig economy is crowded with debates on the regulation of platform labor. The data show a consolidated trend: the platformization of work, that is to say the replacement of stable employment relationships by immediate, flexible, on-call job services, which do not fall within the traditional perimeter of labor law. Deliveroo and Foodora riders, together with Uber drivers, Fiverr freelancers and TaskRabbit maintenance personnel, are the visible symbols of an organization of work based on robust command prerogatives but liquid responsibility on the part of employers. Today, the Italian labor market contains hundreds of thousands of contract workers, and just in Milan there are more than 3,000 riders.

The European Commission, in Communication 356/2016 to the European Parliament and with actions taken under the European Pillar of Social Rights, has defined the priorities of the political agenda on decent work and reduction of inequality. At the local level, the city of Bologna has promoted a Charter of the fundamental rights of digital labor, signed by the Riders Union, mainstream unions CGIL, CISL and UIL, and, crucially, by some managers of food delivery companies. The Lazio Region has also drafted a manifesto of primary rights in the gig economy and will issue regulations before the summer’s over, after a consultation stage. More recently, the new Minister of Labor and Economic Development, Luigi Di Maio, has promoted a series of informal meetings with conventional labor unions and delegates from the spontaneous organizations of precarious delivery workers.

In the meantime, we are also witnessing a series of legal appeals, aimed at challenging the classification of people working under platforms’ algorithms as self-employed. In the absence of a common EU definition of worker, given the national differences in labor laws, judicial rulings have varied widely. So delivery couriers are independent workers for the Paris Court of Appeals and the High Court of the United Kingdom, but are dependent employees according to the rulings of a Belgian administrative commission and the Court of Valencia. Considering this mixed legal framework, last April the Court of Turin rejected the appeal of six Foodora couriers who claimed to be employees of the platform which had dismissed them for promoting labor agitation.

At a first reading, the long-awaited motivations for the Turin ruling are not persuasive. On the one hand, it uncritically embraces the jurisprudence that considers crucial for the determination of dependent employment whether one has the freedom to decide to make himself/herself available for work or not. On the other, a daring interpretation of the article 2 of Legislative Decree 81/2015 (the norm of the Jobs Act that regulates collaborations organized by the client) betrays the expressed intention of the legislator, and also the text of the law. In fact, the judicial resolution of the labor controversy seems to have been guided by a conditioned reflex: in the search for a legal precedent, the court applied the decision made for independent couriers on mopeds thirty years ago (when the economy and technology were vastly different), and renounced  investigating in depth the impact that the digital transformation is having on non-standard job relationships.

In fact, the classic employer’s prerogatives (organization, control and discipline) have been heightened by digital and this was not taken into account in the Turin trial. For many gig workers, especially those doing food deliveries, it is hard to deny the existence of a bond of control and supervision during the job performance, or at least an intense organization activity with respect to the time and place of the job on the part of the platform owner. The judge in Turin decided the case by looking at the rearview mirror. A wasted opportunity to apply to the platform economy a provision of the Jobs Act that, without too much upheaval, sought to extend the guarantees of dependent employment to groups of workers who are only nominally independent.