Another win for workers: Uber drivers are employees (not yet in America though)

[Celerity]

As the platforms lose case after case over the designation of ‘contractors’ as workers, they are lobbying at European level to win back control.

https://socialeurope.eu/another-win-for-workers-uber-drivers-are-employees



‘Gig’ drivers in the Netherlands celebrated another win last week, as the Amsterdam District Court ruled that Uber drivers are employees, not freelances (zz’per). In the most recent of a spate of employment reclassification rulings across Europe, the court also held that the sectoral collective labour agreement (CAO Taxivervoer) would apply to Uber drivers, including pay requirements and some benefits. Additionally, Uber may have to comply with the CAO and pay back wages to drivers in some cases. The case was filed last year by FNV (Federatie Nederlands Vakbeweging), a federation and one of the most active trade unions in the Netherlands representing platform workers. It follows an earlier win in the lower courts in its case against Deliveroo, where the court similarly ruled that the delivery riders were employees. In line with the trend for the major gig companies in Europe, however, Uber and Deliveroo are appealing the judgments.

Relationship of authority

The district court used three attributes to assess whether there was an employment contract between Uber and its drivers: the performance of work, wages and authority. Key was the use of algorithmic management, a consideration echoing the judgment by the UK Supreme Court in February and Spain’s new ‘riders’ law’. The court affirmed that, in our technology-driven age, the use of algorithms to mediate between drivers and Uber constituted a ‘modern relationship of authority’ as an employer. Uber’s algorithm determines how rides are allocated, including the price, with drivers having no influence. The company ranks its drivers, with achievement of ‘gold’, ‘platinum’ or ‘diamond’ status depending on a combination of a driver’s points (obtained through rides), an average passenger rating of at least 4.85 (five being the maximum) and a cancellation rate of below 4 per cent. Such a status provides the driver benefits in terms of ride allocation. In the Netherlands fewer than 300 drivers, out of approximately 4,000, have however been ascribed one.

Such an assessment and ratings system, according to the court, has a disciplining effect which can affect not only how rides are distributed but also access to the application. As such, Uber fundamentally determines the (un)availability of work for a driver and when s/he is deactivated or reactivated. The court held therefore that the algorithm contained ‘a financial incentive and a disciplining and instructive effect’. Uber unilaterally determined many aspects of a driver’s working conditions, from how rides were allocated and their prices to customer complaints, ratings, assessment and access to the app. Its ability to ‘turn the knobs of the app’ to change these settings frequently and arbitrarily, according to its own priorities with zero room for negotiation by drivers, contradicted the entrepreneurial narrative about drivers often articulated by Uber. It was, thus, indeed an employer.

Lack of compliance

While this is certainly a win for FNV and Uber drivers, it remains unlikely the company will comply. Uber confirmed that it would appeal the decision and had ‘no plans to employ drivers in the Netherlands’. Dragging out the process and engaging in damage limitation is hardly a novel tactic by Uber or other gig companies. In the UK, drivers are back in the Employment Tribunal after the Supreme Court ruling, due to Uber’s lack of compliance on the minimum wage. While Spain’s ‘riders’ law’ came into force in August, gig companies have been blatantly shifting tactics to avoid complying with it. Deliveroo will exit its operations in Spain; Glovo will hire only 20 per cent of its workforce, leaving the rest in a potential bidding war for jobs; Uber Eats will follow the exploitative outsourcing and subcontracting model. Without rigorous and strong public enforcement, these companies will continue to disregard court judgments across Europe, leaving precarious workers time and again lacking resources to fend for themselves. Moreover, in the face of the important wins across various member states, gig companies are shifting focus to the European level.

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