Better protection for gig economy workers
By Jean-François Gerard
Increased rights for gig workers continue to be a hot topic around the world.
The EU might soon launch new initiatives as Nicolas Schmit, EU Commissioner-designate for Jobs (ie employment and social affairs) was asked this week by the new EU Commission president to “look at ways to improve the condition of platform workers” as part of his mission for the next 5 years.
California and France are also making the headlines this week, although with very different initiatives.
California focuses on the classification issue, favouring a solution whereby more gig workers are classified as employees. The golden state’s legislator finally voted the so-called AB5 bill this September, ending months of debates. California Governor Gavin Newsom is expected to sign the bill soon (although there might room for some more discussions in the weeks to come), before it enters into force on 1st January 2020. AB5 basically looks at codifying existing case law on the classification of workers. It expands the 2018 Dynamex California Supreme Court Decision that validated the so-called “ABC test” to determine whether a worker is an employee or a contractor. According to various reports, the bill, if signed and published, could have a significant impact on the platform industry, with large numbers of drivers and other gig workers potentially being reclassified as employees and thus enjoying a number of individual employment rights (eg minimum wage, overtime pay etc although not the right to form unions). Some ride hailing platforms have announced further actions so as to benefit from the exceptions provided by the bill it self (a sort of opt out regime) and are highlighting that AB5 is only about confirming existing case law and that they obtained positive rulings in the past from Courts applying the very same test. We will have to wait to see whether California, traditionally considered as a progressive, worker-friendly state, will actually succeed in adding a new layer of protection for gig workers. The approach taken is nevertheless very interesting. It is not common for a legislator to get so deeply involved in the classification debate, to the point of including a test to determine whether someone is an employee or a self-employed person in a bill. Most countries in Europe would refrain from doing so, in the belief that the classification debate is something for the Courts to deal with - not the legislator (who at best would provide for definitions).
And indeed, the new French initiative, while having a similar goal to the Californian bill (ie improving the situation of gig workers), is taking a different route. The Loi d’Orientation des Mobilités (LOM), currently being finalised in Parliament, effectively confirms that drivers of ride-hailing apps are self-employed but confer them a number of additional rights such as the right to disconnect from the app without retaliation or to right to refuse to take a ride (and not to be terminated because of that). The August 2016 El Khomri law had already conferred a number of labour type of rights to self employed platforms workers, eg the right to strike, the right to organise, a protection against workplace accident and a right to training. LOM is adding new rights but only for drivers (as its scope is limited to the transportation industry). LOM also provides for information requirements: platforms will need to communicate the distance and the net minimal price to drivers before each ride. They will also need to publish key indicators on their websites (including financial information on average working time and revenue for drivers from the past year). LOM launches the concept of an optional charter of rights, which will contain further details on working conditions for drivers, how the above rights will effectively be implemented, quality control and even provide for additional benefits for drivers. Platforms choosing to have such a chart will have to consult with the drivers and seek homologation by the authorities - the details of the procedure still need to be agreed on. The law goes on saying that such a charter cannot be used to qualify an employment relationship as the French Government's intention is not to push for an overall requalification (unlike what California is aiming at). However, this will not prevent more court cases from being filed according to the first commentaries. Drivers will still be able to introduce requalification claims in front of labour courts, despite the new law and even if a charter is in place (but presumably they will have less reasons for doing so). There is more to come with the French government expected to propose a legal framework for a social dialogue in the platform industry. LOM is welcomed by some stakeholders (including platforms) but not by trade unions, for example, that believe France is moving towards the launch of a third employment status, in between self-employed and employee, similar to the worker status in the UK or the TRADE one in Spain, which they don’t see as the right answer to the challenge.
Both approaches will certainly inspire other initiatives elsewhere in the US and around the world, especially since California is the centre of the gig economy. California's approach is potentially more expensive for platforms, since reclassification as employee has far-reaching consequences (including back service claims). The French approach is certainly less costly for the industry. French Governments (in 2016 with the El Khomry law and now with the LOM) have made it clear – as the EU did – that they are generally supportive of the platform industry. France has been looking for pragmatic solutions to better protect gig workers in what appears to be a balanced way. The world of work is changing fast and - for once some will say- the French approach seems more modern than the US one!