Humans as a Service: The Promise and Perils of Work in the Gig Economy by Jeremias Prassl

Author:Jeremias Prassl
Language: eng
Format: epub, mobi, pdf
Published: 2018-02-15T11:09:39+00:00

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104

Disrupting the Disruptors

In practice, this approach could lead to some difficulties. How can an

individual know where a worker is based or what the minimum wage is?

And how can we avoid both platforms and customers turning around and

blaming each other when an underpaid worker tries to assert her rights? As

regards minimum wage compliance, platforms easily have all relevant infor-

mation to hand: remember how Requesters on MTurk can already specify

the geographic origin of eligible Turkers. Under a functional concept of the

employer, the platform would be responsible for setting up its systems such

that, for any given amount of working time, no value below the relevant

proportion of an hourly minimum wage can be entered by the customer.27

The answer to potential enforcement problems similarly lies in recognizing

that platforms often stay involved in the exercise of employer functions,

their contractual assertions to the contrary notwithstanding. Under a legal

doctrine known as ‘joint and several liability’, a worker could therefore

choose to pursue either of her employers for the full sum owed, leaving the

joint defendants to settle proportions between themselves afterwards.

We will return to the broader economic and political case for ascribing

employer responsibilities to platforms, users, and even workers themselves in

the next chapter. For the time being, it is important to note that many

elements of the functional approach to identifying the employer, or even

multiple employers, have already been recognized in jurisdictions across the

world. The French courts, for example, have held ‘co-employers’ responsible

when several parties become closely involved in the exercise of key employer

functions,28 and the Court of Justice of the European Union has similarly

indicated its willingness to interpret the concept of the employer widely.29

In the United States, joint employer status has been part of the US Fair

Labor Standards Act since 1938;30 in the UK, the common law has similarly

evolved to hold multiple employers responsible.31

The question of employer responsibility in the on-demand economy is thus

considerably less intractable than it first appears. Mere contractual assertions are

never enough to deny workers’ proper classification as employees; a functional

concept of the employer can accurately and consistently assign responsibility

even where multiple parties exercise traditional employer functions. By includ-

ing on-demand workers who cannot enjoy the benefits of genuine entrepre-

neurship within the scope of employment law, a level playing field is restored:

platforms that provide services, rather than mere introductions between inde-

pendent contractors and their clients, are recognized as employers, with a duty

to pay and protect their on-demand workforce accordingly.

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