The situation of platforms’ workers is at the heart of legal debates since the explosion of the gig economy: are these workers employees? Or are they real independent?
Most of the time, platforms choose to conclude a service provision contract with their workers in order to benefit from the flexibility and low costs granted by independent work.
However, in different cases, French judges recently ruled that the working conditions of supposed independent workers were – in fact – hiding an employment relationship (Supreme Court, November 28th, 2018 n°17-20.079 against Take Eat Easy; Paris Court of Appeal, January 10th, 2019, n°18/08357 against Uber). These decisions were notably based on the fact that workers were subject to a geo-tracking and bonus/penalty systems, had to follow an itinerary defined by the platform and were encouraged to remain connected to the platform.
Considering working conditions are the same in many platforms, the risk of reclassification into an employment contract is significant and would have important costs for them (payment of a minimum wage, overtime, social security contributions…).
To resolve this matter, a Bill drafted by the Government is currently discussed before the French Parliament.
The “Mobility Law”
Three years ago, the Legislator adopted a first law creating a social responsibility for web platforms regarding work-related accidents and illnesses, and vocational training. This law also enshrined the right for any worker to form or join a trade union and the right to strike.
During Autumn 2018, the Government presented a draft Bill to the French Parliament aiming at deeply reforming the general applicable framework. In this context, the draft provides for further measures and completes the platforms’ social responsibility created by the 2016 Law.
At the moment, the draft Bill has been adopted by the French National Assembly on September 17th, 2019. It will have to be debated again in Senate before being definitively adopted.
New provisions would only apply to platforms (i) acting in the transport with driver sector and (ii) the delivery of goods by means of a two or three-wheeled vehicle, motorized or not (Article L. 1326-1 of the Transport Code modified).
First, these platforms would have to respect certain obligations in their relations with workers:
- Communicate to the worker the covered distance and the minimal fee guaranteed before each service;
- Prohibition to sanction the worker for having ended a service or refused a ride;
- Publication on its website, “in a fair, clear and transparent way”, of indicators relating to the duration of activity and the income received by workers during the past year (a decree will specify these indicators);
- Allowing workers to choose their working hours and period of inactivity during which they can exercise their right to disconnect without any penalty.
Furthermore, the platforms would have to complete the so-called “vocational training account” of each worker after reaching a certain level of revenue, depending on his business sector (Article L. 7342-4 of the Transport Code modified).
Second, the draft Bill provides for the possibility for the concerned platforms to establish a company policy defining terms and conditions of its social responsibility, notably: the conditions under which the activity is carried out by workers, the terms and conditions for obtaining a “decent price” for their services, the expected quality of service or the methods used by the platform to control the performance of the activity…
Then, after consulting its workers on the project, the platform would have the possibility to ask the Labour Inspection for the endorsement of said policy.
In case of endorsement, the policy would better protect the platform against the risk of reclassification. In case of litigation, a worker trying to obtain the requalification of his relationship with the platform would have to justify his state of subordination on the basis of elements different from those provided by the policy.
Finally, the policy would have to be published on the platform’s website and be attached to its general terms and conditions.
If the current legal move on this topic is good news, it is not sure that the measures provided by this draft Bill will be enough to fully secure platforms workers’ situations. Indeed, the possibility offered to platforms to define terms and conditions of their relationship with their workers through a policy could not be sufficient to clearly define a real status for them.
The main criticisms relate to the fact that under French law a policy does not have any binding effect and only constitutes a “soft law” instrument.
Besides, the establishment of a policy provided by the draft Bill would only be a mere option for platforms. Such possibility could thus increase existing gaps between platforms and between workers.
Finally, the content of the policy would only be established by the sole platform. Even if workers would have to be consulted on the project before its communication to the Labour Inspection, the draft Bill does not specify the influence of their opinion. The Labour Inspector would likely decide to endorse the policy by taking into account the workers’ opinion but again terms and conditions of the Labour Inspection’s control are not defined by the draft Bill.
The story of platforms’ workers is far from being over…