Bogus self-employment & platform workers: EU wants to examine criteria

Digital platform business models like Uber are often in the Criticism to exploit. The EU now wants to improve the working conditions of the often bogus self-employed workers.

Platform workers in the focus of the EU Commission – EU wants to clarify employee status

The digital platform economy has grown rapidly in recent years growth at. Platforms typically broker small orders to self-employed individuals. A well-known example of this is the driving service provider “Uber”. These digital work platforms create opportunities for Companys and offer consumers convenient access to services.

But the platform workers also benefit from the spontaneous and short-term availability of orders. The European Union (EU) has now decided to improve working conditions in platform work. The Federal Labor Court (BAG judgment of December 01.12.2020, 9 - 102 AZR 20/XNUMX) has also dealt with the employee status of such a "crowdworker" in the past and decided that the contractors of the platforms are to be treated as employees in certain cases.

The proposals of the EU Commission

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On December 9, 2021, the EU Commission proposed a number of Measures to improve the working conditions of Peoplewho work via digital work platforms”. These measures also include a draft proposal for an EU directive. This proposal for a directive provides a procedure for quickly clarifying the employment status of platform workers.

For this purpose, a list of control criteria is proposed, which should be used to determine whether a digital work platform Control exercised over a person and whether that person is therefore to be considered an employee. However, it will be different than in German System does not directly assess the individual employment relationship, but the employer status of the platform.

Relevant labor law aspects

Even if the criteria of the proposal for a directive provide similar criteria for assessing employee status as German labor and social law, these are nevertheless clear narrower and will more quickly lead to an assumption of the employer status of the platform. As criteria for determining the degree of control, the proposed directive sees, among other things, the determination of the amount of remuneration, the monitoring of the execution of work through the platform on electronic ways as well as restrictions on the free determination of attendance times or acceptance of tasks.

Also establishing certain binding Regulate in terms of appearance and in terms of work performance are covered by the catalog of criteria. However, the criterion of demarcation of entrepreneurial risk, which is so relevant under German social security law, is not found in the proposal for a directive.

When does the platform become an employer?

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If at least two of these criteria are met, the employer status of the platform is assumed. This assumption can then be refuted by the platform with appropriate evidence. Compared to the German regulatory structure, this represents a reversal of the burden of proof, which means that platform operators can expect considerable additional work and social security costs.

The persons classified as “employees” based on the criteria of the EU Directive would thus be granted all employee rights. This concerns in particular entitlement to the minimum wage, participation in collective bargaining, regulated working hours, paid holidays and improved access to protection against accidents at work. However, entitlements under social law with regard to benefits in the event of unemployment, illness and old-age pensions also result from being classified as an employee.

Effects on existing business models

The proposed directive will therefore have far-reaching effects on the current platform economy, insofar as platforms have not already employed their employees as employees. However, only digital platforms that support the work of individuals are covered by the directive to organize. She shouldn't for Online-Platforms that merely list the supply or demand for services or display available service providers in a specific area.

It will have to be assumed that many business models will change, since they either have to be designed in such a way that they do not meet the criteria of the directive, or the "employee status" will mean additional administrative work for the platform operators, which in the previous flexibility and agility of the platform work will have a huge impact.

Businesses and platform workers need to rethink

Businesses will need to develop appropriate mechanisms to carry out these administrative procedures quickly so as not to disrupt the existing availability of services. In addition, it is also to be expected that platform workers' interest in the activity will decrease to a certain extent, since they too will benefit from the existing flexibility. With the employee status, not only does the employee have a right to employment, but also an obligation to perform.

The clear criteria proposed by the Commission should bring greater legal certainty and lower legal costs to the platforms and make business planning easier. It remains to be seen whether the EU directive will actually lead to this.

Legal consequences for affected companies

The test will be complicated because our national labor and social security laws have different requirements for employee status than the proposed test criteria. Since contracts for digital platform work are regularly awarded via automated, algorithm-based technologies, the proposed directive should also increase transparency in the use of algorithms by digital work platforms in the form of "algorithmic management" and ensure that working conditions are monitored.

These rights are to be granted to both employees and genuine self-employed persons. In order to assert the right, personal contact persons should be implemented for the platform workers. The implementation of these systems and compliance with legal requirements will also pose legal challenges for companies.

Outlook: Platform business models in transition

So far it is only a proposal for a directive by the EU Commission. In a next step, this proposal will have to be discussed by the European Parliament and the Council. If the proposal is accepted, Member States would then have two years to Implementation of the directive into national law. When it comes to implementation, Member States have a certain amount of discretion.

At the national level, the Federal Ministry of Labor and Social Affairs announced even before the EU Commission's proposal for a directive that it would take measures to give platform employees access to protective rights under labor and social law. In any case, the usual agility, flexibility and sovereignty, which the platform activity offers so far, in Future experience a change.

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