Introductory Remarks
(I realise that I have not finished posting my reflections on the Workers’ Economy Gathering in Argentina. There is still much to be said; I will try to return to that theme in the next few days)
The past Thursday and Friday, I had the pleasure of attending a thought-provoking conference on work in the platform economy, organised by the University of Amsterdam (UvA) in collaboration with ShareNL. As one of the organizers, Dr. Niels van Doorn of UvA, noted in his closing remarks, the conference represented a concerted effort to bring together the various stakeholders of the platform economy in one venue. This included: gig workers, platform company executives, policy makers, trade unionists, staffing agency representatives and (academic) researchers – particularly ones with a legal background.
I made notes of the presentations and roundtable talks I attended which are attached available at the end of this paragraph and at the end of this blog post; they provide insight into the type of research currently being done regarding work in the platform economy and the methodologies being used. A version of these notes will appear as a conference report in the European Company Law journal, February 2018. [NB: My own contributions and remarks in the notes are in red font. Platform, sharing and gig economy is used interchangeably by the speakers, which is reflected in my notes. Please excuse any grammatical/spelling errors or any omission of content. The copyright of all the slides belong to the respective presenters and serve to fill gaps in my notes.] Below is a summary of those notes. One common conclusion among the assorted participants is that much of the research is still tentative and exploratory: there is still much left to be done to understand this complex ecosystem.
Reshaping Work in the Platform Economy – Conference Notes by Morshed Mannan
Summary
The conference, held at Amsterdam University College, commenced with the key note address of Very Demary, an economist at the Cologne Institute for Economic Research, on how digital platforms enable work. Demary’s presentation set the tone for the conference by explaining what platforms are, what their economic model is and how a vast, heterogeneous collection of platforms can be categorised. This was followed by a survey of the types of work done on, and for, platforms as well an evaluation of the opportunities and challenges they presents to service providers.
Parallel Paper Presentations # 1
This was followed by parallel paper presentations on ‘Crowdwork in the Global Economy: Challenges and Opportunities’, ‘Platform Economy, Technological Disruption and Online Reputation’ and ‘The Protection of Digital Labor: National and International Legal Perspectives’. It was quite difficult to choose among these panels, but I ultimately opted to see the presentations on digital labour.
RechtDeur: Case Study of a Platform for Lawyers
The first presentation by Susanne Heeger of Utrecht University was a case study of a new platform for lawyers in the Netherlands, Rechtdeur, conducted under the aegis of Utrecht’s interdisciplinary research project on the Future of Work. The research question for this case study is whether the lawyers using the Rechtdeur platform to connect to clients have a subordinate and dependent relationship with Rechtdeur. In other words, whether an employment relationship exists between Rechtdeur and the legal service providers. After evaluating the degree of control the platform exercises and the extent to which the lawyers are able to act independently, Heeger concluded that Rechtdeur is not likely to be considered an employer.
Tax
The subsequent presentation by Professor Diane Ring concerned a topic that is opaque for gig workers and researchers alike: the tax implications of gig working and the gig economy. After briefly going over sharing economy developments in the US and the worker classification tests commonly used by lawyers and regulators, Ring expressed concern about how the worker classification debate has not adequately considered tax implications as well as the fragmented, un-synchronised manner in which the classification discussion in the sharing economy has been approached in the US. Lawyers, regulators, academics and policy makers operate in their own silos, leading to incorrect assumptions, over-simplifications and generalizations. ‘First movers’ such as class action litigants and local ordinances are able to address some of the immediate, short-term exigencies of the platform economy (e.g. platform drivers’ demand to unionize) but can shift focus/de-emphasize long-term, structural issues such as the re-evaluation of employment classifications. Ring calls this an ‘incomplete conversation’ and argues that better classification conversations are needed. She calls for legislation that would minimize (adverse) impacts of the sharing economy, legislators to question their assumptions and greater attentiveness to potential ramifications and first mover effects.
Transport Law and the Protection of Platform Couriers
The third presentation of this panel by Dr. Wouter Verheyen of Erasmus School of Law explored an alternative legal basis to protect platform service providers, such as couriers, other than under employment law. The speaker argues that (critical) contract law can have an important role (e.g. unfair contract terms) as well. The speaker did research on how transport law in Belgium and the Netherlands can protect users without requiring the re-classification of independent contractors. Verheyen compared the differences between employees and freelancers (ZZPers) in how liability for damage to contract parties, third parties, personal property and personal injury are allocated. He also compared ‘fair compensation’ under labor law, contract law and carriage law of said service providers and analysed the working time regulations applicable to couriers. Based on this analysis – detailed further in my notes – he concludes that transport law could provide for an almost equal protection of the (courier) freelance service as labor law does. The limitation is that laws governing carriers are drafted with trucks in mind, which often leaves bicycle couriers outside of certain protections afforded under said laws.
Can Gig Workers be considered Franchisees?
Another alternative approach to protecting platform service providers was suggested by Hanneke Benaars of the University of Amsterdam: analysing whether certain protections can be extended to these providers via franchise law by treating service providers as franchisees. Given the limitations of existing legislation in encompassing new forms of work, franchise law could provide a useful alternative that does not require the employment status of service providers to be reclassified. In short, Benaar notes the resemblance of the platform-service provider relationship to that of a franchiser and franchisee, in particular how a franchising agreement seeks to rebalance the bargaining relationship much as an employment contract (ideally) does. Benaars refers to the (non-binding) franchise code of conduct prepared by the Dutch Franchise Association in 2016 which requires franchisers to refrain from misleading recruitment and advertising with respect to results/possible earnings, as well as pre-contractual information obligations to provide written information on market situation, forecast of turnover and costs and limitations of non-competition clauses. The franchiser also has to provide commercial, operation and logistic means to the franchisee, along with training and assistance if the franchisee’s results lag behind. While there are notable differences between franchising and employment relationships, particularly with regard to payment and risk structures, it is worth considering whether default categorisation of platform work as a franchising arrangement would extend at least some protections to the service provider (e.g. insurance). Benaars concluded her presentation by forwarding the idea of a platform code of conduct.
“Think-Like” Round-tables
After lunch, the conference participants congregated in different round-tables to speak to entrepreneurs, gig workers, policy makers, labour organisers, incumbent (platforms) and staffing agencies about their experiences and thoughts on the platform economy. Given my particular research interests, I attended the rountables led by labour organisers and gig workers.
Should an intermediate ‘worker’ category be introduced in more jurisdictions?
In the first round-table, the discussion centered on whether an intermediate employment category – between employee and independent contractor – should be introduced in the Netherlands, as it has been in the UK (‘limb (b) workers’). Dr. Jason Moyer-Lee, General Secretary of IWGB, a trade union that represents couriers and other members of the precariat, was of the opinion that an intermediate category was a positive regulatory introduction. In his experience, the average courier (for e.g.) didn’t want to be an outright employee and enjoyed the preferential national insurance contributions and tax relief they would otherwise not be entitled to as employees. As such, limb (b) worker classification struck a balance between employment protections and independence. In contrast, Irene van Hest and Mei Li Vos, representatives of the FNV and AVV, two Dutch trade unions attempting to organise platform workers, were of the view that a third category is undesirable. (It should be noted that there is effectively a third category of worker in the Netherlands already, in the economic sense that there are protections for non-employee workers such as resting time for truck drivers and health & safety rules which apply irregardless of employment status) They both had strong words regarding the adverse effects of the platform economy, in terms of worker rights erosion as well as social security contributions. The floor was then opened up for other participants to share their thoughts on a third category. I pointed out the article by Cherry & Aliosi (2016) on Dependent Contractors in the Gig Economy which, after comparing the implementation of third categories in Italy, Spain and Canada, found it not to be a panacea for extending protection. The discussion then turned to labour organisation. Some of the discussants were concerned that such unions of, essentially, self-employed individuals could be caught by EU anti-cartel regulations but this concern was allayed by Dr. Moyer-Lee who pointed out that limb (b) workers in the UK have the right to collectively bargain and this right has not been challenged before the EU courts. Dr. Mohammad Anwar of the Oxford Internet Institute observed that from his research on 5 African countries, there was clearly an interest in unionizing in other, developing countries. There may also be much to learn from nascent organising practices in these countries as well, such as the extensive use of WhatsApp groups.
The Deliveroo Riding Experience & Tentative Attempts at Rider Organising
The second round-table was led by Yorick Bleijenberg, a rider for Deliveroo who has been employed by the platform for 18 months on a ‘min-max’ contract. (A min-max contract is a part-time employment contract which commits the employee to a minimum amount of work per week but the employer can call for the employee to work additional hours, to a pre-defined maximum, if required.) Bleijenberg described his average working week, his payment structure and the changes that are currently underway in Deliveroo – namely, a transition away from min-max contracts to full freelancer arrangements where riders would be paid by order, rather than per hour. He also spoke about the informalisation of rider communities as the platform provided fewer opportunities for riders to interact. He wrapped up by discussing the priorities of the Riders’ Union, a collective bargaining organisation supported by the aforementioned FNV, that has been trying to end freelance contracts as well as push for the introduction of CAOs, works councils and permanent contracts for riders. Interestingly, it seems that the riders have considered the option of forming a cooperative but have thus far been disinclined to pursue it further due to high start-up costs (especially technology) and fierce competition from other platforms.
Parallel Paper Presentations # 2
After two stimulating round-tables, there was another series of parallel paper presentations: ‘A fair share – Safeguarding public interests in the sharing and gig economy’, ‘Platforms as Employers and New Forms of Collective Action’ and ‘How Platform Work is Changing Working Conditions’. Again, each of the panels were chock-a-block with interesting presentations but I ultimately chose to attend the one that had researchers presenting case studies as I am thinking of using case studies for my own doctoral thesis.
Regulating Cross-border Digital Labour
The first presentation, by Dr. Johanna Jacobsson from IE Madrid concerned the transnational regulation of digital work. Her research conceptually stems from Richard Baldwin’s contention that “knowledge crossing borders in massive amount is the big new disruptive thing”. Dr. Jacobsson traced the liberalisation of cross-border work and explained how the current international regulatory framework for such work is insufficient. She concluded that questions regarding employment classification, remuneration, working conditions, collection of taxes and social security payments and immigration should be regulated internationally – not just subject to national diktat.
The Extent to Which Etsy Reshapes Work
The second presentation, by Dr. Anne Jourdain of the University Paris-Dauphine, concerned a sociological study into the use of the Etsy platform by hobbyist handicrafters and professional artist-craftsmen for self-employment. Through a combination of qualitative and quantitative research, Dr. Jourdain found that Etsy is not a business opportunity for most sellers and that most of the successful sellers on Etsy were not makers of products. In terms of ‘reshaping’ work, Etsy prompted users to do activities other than producing goods, such as help improve Etsy’s algorithm, and encouraged users to think of themselves as entrepreneurs.
How La Belle Asiette is Creating a Marketplace for Private Chefs in France
The third presentation, by Dr. Sidonie Naulin of Sciences Po/Grenoble, also regarded an ongoing sociological study. However, instead of looking at handicraft production via an online platform, Dr. Naulin’s investigation was on La Belle Asiette, a platform connecting private chefs with clients in France, so as to better understand the demographics and motivations of private chefs as well as the role of the platform in creating a marketplace for such services. Preliminary results from interviews indicate that the vast majority of private chefs are male, operate in metropolises and choose to use the platform because of disillusionment with traditional catering. An interesting observation made by Dr. Naulin was that some private chefs develop a personal connection with their customers, who eventually start booking their services directly.
How do people feel about, and cope with, the collection and commodification of their data?
The final presentation of the day, by Michael Etter and Dr. Giulia Ranzini of Copenhagen Business School and VU Amsterdam respectively, shared the results of a large-scale, multi-country project on how consumers feel about the collection and commodification of their (personal) data. 18 focus groups were conducted in 6 European countries involving 98 millennials on how they feel about data collection by platforms, in terms of how they perceive control over the exchange and fairness of the exchange. The results of the focus groups were divided in 4 categories, resignation/inevitability, optimism, negotiation and cynicism. This was complemented with a larger survey of 12 European countries involving 6,111 participants, asking them whether they felt they got out of the platform what they put in (i.e. data). In short, it seems from their ongoing analysis that there was a wide variety of responses to these questions, from fatalism and cynicism to even a modicum of acceptance and control.
This concluded the first day of the conference.
The second day of the conference began with a couple of key note addresses, by a platform CEO and acclaimed academic respectively.
Key Notes: CEO of Helpling & Dr. Jeremias Prassl
The first key note was by the CEO of Helpling, a tech company operating Europe’s leading marketplace for household services.
Why ‘Good’ Public Policy is Critical for the Platform Economy
Benedict Franke, the CEO of Helpling gave a brief overview of Helpling’s activities as a curated online platform that connects households with service providers worldwide. The platform, among other things, vets, books, matches and schedules service providers and manages a variety of payment and invoicing functions. Franke cursorily covered the ‘usual’ complaints against platforms before turning to what he thinks to be the ‘real’ issues that merit attention: bridging income inequality and participation in society with access to social security for entrepreneurs. As is often the case with entrepreneurs, he places the onus on governments and local municipalities to create public policies that simultaneously facilitate platforms and protect the incomes of service providers. He advocates for adopting the French model of regulating household service providers. He contrasts the ‘good’ public policy of France with the ‘bad’ public policy of Germany, whereby the former offers generous tax credits and a high VAT free income threshold while the latter does not. One of the purported advantages of the French system is that it has brought a greater number of household workers into the legal market from the black market.
Rethinking Norms for a World of Intermittent Work
The subsequent address by Dr. Jeremias Prassl, Associate Professor at Oxford University, explored the two dominant narratives regarding the gig economy: the ‘freedom’ narrative and the ‘medieval exploitation’ narrative. He side-stepped favouring either narrative and cautiously commented that there is truth to both narratives because of the vast heterogeneity of self-employment. With regard to the challenges of regulating new forms of work, he contended that some forms of work are thinly-veiled attempts to avoid employment relationships. Others do create new boundaries of work and are more difficult to address. However, what is most challenging is re-conceiving norms regarding work in an economy where it has become fragmented and intermittent. He concluded his presentation by drawing an analogy between the Mechanical Turk – a purportedly automated chess-playing machine that was operated by a human from a dark compartment – with modern algorithms. The analogy is important to remember as no matter how shiny the platform or how complex an algorithm may seem to be, there is always some human(s) influencing it.
Questions to, and from, Gig Workers
The following segment was quite creative, at least as far as conferences go: gig workers and representatives from platform enterprises were able to share a stage, to share their perspectives on the platform economy as well as their own personal thoughts and experiences. The discussion was generally civil but there were moments where the tension in the air rose precipitously, particularly when the Uber representative (passive-aggressively) asked why the gig workers chose to work for digital platforms.
Laurin Sepoetro, a Senior Associate at the EU Public Policy department of Uber, spoke about the advantages and opportunities Uber offers its drivers and informed the audience about the new functionalities the app is rolling out. This includes a ‘tips’ and ‘insta pay’ function, which in my view essentially diminishes the centralising role of Uber that cumulatively led to it being considered a transport company and employer in some jurisdictions. Other noteworthy recent developments include Uber’s new partnerships for benefits and protection of drivers and the introduction of mechanisms to receive feedback from drivers. Michelle van Os, Managing Director of Helpling Nederland, repeated some of the remarks of the Franke and added some comments regarding new functions that may soon be added to the app. For instance, as many of the service providers that use Helpling are cleaners, the company is considering adding a min-max hours option, information about additional work that cleaners are willing to do and, potentially, the ability of workers to negotiate their own wages. The contributions of gig workers like Alina Lupu (also a conceptual artist) added nuance to the popular understanding of the gig working experience. One example is the mental and emotional toll of gig working; the moments spent mentally preparing to cycle 40 km for a shift. A remark from an Uber Eats cyclist is that while riders have freedom to log in and log off the app, the fact that you are paid per delivery means that during certain times of the day/week (dinner, weekend evenings) when there are many order, you are compelled to be available.
Parallel Paper Presentations # 3
After lunch, the final round of paper presentations took place. I had to choose from ‘The Implications of the Automation of Work’ and ‘Boundary Work: Ambiguous Worker Identities and Social Protection’, ultimately selecting the former.
The Influence of Platforms in Shaping Institutional Logics
The first presentation was by Professor Koen Frenken of Utrecht University who analysed seven platforms operating in the Netherlands in relation to the main institutional logics of a society (i.e. market, corporation, profession, state, family, religion and community). In the last 200 years, the market, corporation, professions and the state predominated. Digital platforms are now carving an entrepreneurial space for themselves and fiercely defending it. He spoke about how digital platforms are shifting to new institutional logics due to the emergence of algorithms, checks and bans and rating systems. However, what is interesting is that while these 7 platforms share certain common traits, they define themselves in different ways and as a corollary, seek disparate forms of regulation. In other words, he argues that they have taken three different trajectories. Some platforms have adopted a community logic by building a sustainability raison d’etre for their business, some have incorporated a family logic by utilising a tech/hobby argument while others have appropriated a state logic by contending that it formalises certain activities. As a consequence, institutional logics such as the corporation and profession are being rendered redundant.
The Digitalisation of Work
The second presentation was by Dr. Mascha Will-Zocholl of Hessian University of Public Administration, Wiesbaden and was perhaps the broadest in its scope, at least among the talks I attended. It delved into ‘theories of informatisation’ and distinguished between informatisation, digitisation and virtualisation, terms that are often used interchangeably in popular media. According to Dr. __ the theory of informatisation “[e]xplains the connection between information producion, handling use and capitalist economies” (Schmiede 1996; Boes 1995). Informatisation is the “socio-historical process of systemic handling of information”, such as double-entry book-keeping, and digitisation is the “computer-based transformation/creation of digitised and/or digital information” which makes “data exchangeable through ICT-systems.” Virtualisation takes digitisation a step further, as it is “based on digital representatives of physical and digitised entities ‘possibly there'”. It makes me think of the difference between a remote physical assistant who may be reachable by phone or e-mail versus a virtual assistant who can carry out certain tasks and instructions if certain inputs are delivered. If we trace the change of work using the metrics of time, place, employment and qualification, we can see the emergence of new forms of work, from knowledge and information work that was done from the middle of the 20th century to the more recent platform-based work and virtual work. Some scholars (e.g. Schmiede 2016) are even speaking about the evolution of a homo faber digitalis. Dr. Will-Zocholl then turned to a hot topic in the domain of digital work: automation. She pointed out that the numbers of jobs projected to be displaced by automation differ widely, depending on the context that is taken into account. As with earlier speakers, Dr. Will-Zocholl sought to temper the furor regarding human obsolescence by observing that automation has the potential of creating new types of jobs and that there is an inherent capacity of humans to adapt (as occurred after earlier technological revolutions).
Legal Interpretation and Implications of Algorithmic Management on Worker Rights
The final paper presentation concerned an early-stage research project on the nature of algorithms and the implications it may potentially have on worker rights. Dr. Julia Tomasetti of City University of Hong Kong research touches upon, among other things, the liability implications of legal actors attributing actions to digital algorithms. By suggesting that algorithms are hyper-rational and benefit from hyper-cognition that is beyond the capacity of mere mortals, human agents try to exculpate themselves from actions taken by algorithms (e.g. price-fixing). Questions regarding the capacity of algorithms to have subjective opinions and to be involved in price-fixing conspiracies are now subject to lawsuits in the USA and these decisions will contribute to a better understanding of the potential and limitations of algorithmic management.
Key Notes: Professor Benjamin Sachs and Professor Evert Verhulp
The conference concluded with key note addresses by two eminent professors of employment & labour law.
Regulating Gig Workers in a Progressive Jurisdiction
The key note address by Professor Benjamin Sachs of Harvard Law School began with a normative question about how gig work should be regulated:
What is it that a progressive jurisdiction, one that is interested in the lives of gig workers, what is it that such jurisdiction should do?
Professor Sachs cogently argues that gig workers need minimum standard protections, collective voice & negotiation mechanisms and protection from technology-related job loss. His remarks regarding the third requirement were particularly illuminating as he addressed the need for a ‘robot tax’ to offset the costs of automation-induced human job loss and equity-ownership of platforms by drivers. He then turned to the question of how the gig economy should be regulated so as to achieve this progressive objective – an ambition that seems increasingly elusive in the US due to current political conditions. He canvassed the much discussed options of treating gig workers as employees, as independent contractors or being subject to a third employment category, conceding that any of the options may be favoured by regulators but personally arguing for expanding the reach of employment law; by understanding employment more “capaciously”. If the status quo of treating service providers as independent contractors are sustained he contends that at a minimum health & safety coverage and anti-discrimination protection should be extended and a universal ‘portable benefits system’ should be created. (Further detail on his aforementioned arguments are provided in my notes)
So what do we do about digital platforms and platform labour?
The last key note address of the conference was by Professor Evert Verhulp of the University of Amsterdam who shed light on the Dutch perspective on regulating platform labour. As with many of the speakers, he spoke about the implications of platform labour before exploring why employment status may be desirable – or not – from the vantage point of the putative employer and service provider. He pointed out that in the Netherlands the tax advantages of being self-employed and the onerous requirements imposed on employers if an employment relationship is established (e.g. up to 2 years of sick wages at 70% of the full wage) can dissuade either party for seeking an employment relationship. At the same time, it is apparent that a number of people engage in activities like crowdwork not because they personally enjoy it but because it is a source of income. He argued that in light of these disparate interests, and given the need for protection (especially for those who are self-employed without alternative choices) the fundamentals of labour law and social security need to be reviewed, the state needs to step in to create a floor of rights along with the environment for service providers to develop a sense of community, and the way we value work and its place in society needs to be reconsidered.
With those recommendations, the conference was brought to a befittingly open-ended conclusion.
Reshaping Work in the Platform Economy – Conference Notes by Morshed Mannan
Morshed
Leiden
The Bar Necessities 
