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The Regulatory Challenge of Occupational Safety and Health in the Online Platform Economy

Abstract

The online platform economy raises a range of intricate legal questions connected to labour law and social security protection. In particular, the atypical forms of labour relationships used by many online platforms (e.g. multilateral, hyper-temporary, off-site, autonomous), often contractually defined as independent contracting, have challenged the application of labour and occupational health and safety law in many countries across the world, as the application of these norms tends to be dependent on the existence of an “employment relationship”. These developments are compounding the general increase in atypical employment, especially as a result of the 2007–08 financial and economic crisis. It has mostly fallen to courts to resolve the disputes between online platforms and their online platform workers, but some European Union (EU) Member States (such as France) have taken specific legal measures in response to these difficulties. Also, the EU-level as such is becoming increasingly involved, with the Court of Justicersquo;s ruling in the case of Uber providing some guidance on the “employment question”, and a pending legislative initiative on a Directive for Transparent and Predictable Working Conditions which may provide minimum labour protection for online platform workers in the EU. This article analyzes the problem of labour law in the online platform economy and surveys the various responses by courts and policy-makers across the EU, which may furthermore set the tone for developments outside the EU in this area.

Key words occupational safety; labour market;employment;EC Regulation; ILO; European Union;international

Introduction

In our increasingly digitalized world, a crucial role is played by online platforms. These platforms–dynamic websites that constitute digital public squares or marketplaces–can impact the economy and our society in various ways and their regulation (or lack thereof) is increasingly the subject of public and political debate. The way in which Facebook deals with personal and public information, the influence of Airbnb on our habitat, Uberrsquo;s effects on the taxi sector, all these issues regularly make headlines and regulators are faced with the thorny question of how to deal with the disruption that these developments seem to bring. Indeed, the regulatory challenges or questions raised by the online platform economy are manifold and “span the entire map of the legal world, including work, tax, safety and health, quality and consumer protection, intellectual property, zoning, and anti-discrimination” (Lobel, 2016). One key legal question is to what extent the various labour and employment regulations, which have usually been designed with a traditional bilateral, standard, open-ended employment relationship in mind, can and should be applied to the often atypical working arrangements used in the online platform economy.

The drivers, riders, cleaners, designers, translators, technicians and others working in the online platform economy are often formally contracted as independent, and their working arrangements tend to exhibit features that are difficult to square with the traditional employment relationship, such as the use of own materials (e.g. the driverrsquo;s car), autonomy concerning working hours (e.g. deciding to work by logging into a smartphone app), the short duration of the relationship (e.g. the translation of a single sentence; see Milland, 2017), and the multilateral character of the relationship (e.g. the driver, the platform and the passenger).

At the same time, the worker may well be economically dependent on the platform work, the contractual independence can be constructed in rather artificial ways (e.g. a driver that works full-time for a platform for several years, but is formally contracted per journey) and the platform can exert significant control over the work and the person performing it. This complex reality has challenged judges in many jurisdictions, who have had to decide on claims brought by online platform workers against the platforms, arguing that they should be treated not as independent contractors but as “employees or workers”.

The additional protection that would usually result from such (re-)qualification seems welcome from a social security and occupational safety and health (OSH) perspective, considering the often vulnerable profile of people working in this sector in often precarious conditions (see below). Although some consider that traditional labour protections are not suitable for the “new” and “innovative” aspects of online platform work and that the application of these protections would inhibit their dynamic development, many others argue that employment rules should, at least in some form, apply. As this article will discuss, the various legal solutions proposed to ensure such application vary widely. One key distinction is between the approaches that consider it necessary to amend current legal provisions to allow their application to online platform work and those that would “simply” apply the current legal provisions. A further difficulty is the cross-border dimension of digitalization, which puts into question whether the national legal system alone constitutes the most effective locus to regulate (labour in) the online platform economy. Across the world, countries have been dealing with these questions, up until now mostly on an individual basis. In Europe, however, where generally the most important regulatory developments appear to have taken place, the EU institutions are becoming increasingly involved. As we also discuss, this may spur further developments internationally, most prominently in the context of the International Labour Organization (ILO).

OSH in the online platform

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