A Global System of Work, A Global System of Regulation?: Crowdwork and Conflicts of Law

Innovation and Economic Growth, Networks, the Internet, and Cloud Computing, Internet and Media and Content

Article Snapshot

Author(s)

Miriam A. Cherry

Source

Tulane Law Review, Vol. 94, pp. 1-62, 2019

Summary

Digital platforms that post tasks for completion by online workers are popular world-wide. Courts must consider how local labor laws should be applied to remote workers and platforms based in other nations.

Policy Relevance

Policymakers should consider a system of international rules to set standards for digital labor.

Main Points

  • Online platforms like TaskRabbit, Upwork, and Chatterbox post tasks from requesters around the world for completion by remote online workers; these on-demand platforms hire workers and seek customers across national boundaries.
     
  • As of 2016, over 45 million people in the United States worked in the "gig" economy, and the popularity of online platforms that offer gig work has continued to grow around the world.
     
    • Gig work creates opportunities for those who need flexible schedules or to limit commitments.
       
    • Gig work lacks benefits and may lack opportunities for advancement; rates of pay are low.
       
  • Classification of a worker as an employee determines whether labor and employment laws setting a minimum wage, protecting the right to organize, and unemployment compensation will apply.
     
  • Factors that courts often use to determine whether a worker is an employee or an independent contractor include:
     
    • Whether the employer may direct the way the work is performed and determine the hours involved.
       
    • Whether the work is high-skilled, whether the worker provides her own equipment, sets her own schedule, or gets paid per project.
       
  • Some courts in the United States, the United Kingdom, and other nations have determined that Uber drivers and similar workers are employees, but courts in France and Italy determined they were independent contractors; divergence is likely to continue in national rulings.
     
  • Many choice of law and choice of forum problems involving digital platforms are likely to emerge; California law resolving these issues will be important, because several digital platforms are based in California.
     
  • Under European Union law, if the agreement to work under a digital platform is treated as contract of employment, the law of the place in which the employee works will govern; however, if the agreement is treated as a service contract, the law of the country where the service provider lives will govern.
     
  • Indian law concerning the choice of law is derived from United Kingdom law; Indian courts will generally respect parties' choice of law in a contract, but not if their purpose is to avoid application of Indian law.
     
  • Choice of law clauses will not be considered absolute in the United States, Europe, or India; in all three forums, a conflict of law is likely to be resolved by looking to the area where the work is actually carried out.
     
  • Policymakers could consider transnational or international systems for regulating crowdwork; systems that could serve as a model include:
     
    • Regulations with extraterritorial reach, such as Europe's General Data Protection Regulation.
       
    • Employment sectors such as maritime work, in which the physical location of workers is disregarded.
       
    • Corporate codes of conduct setting best practices for crowdwork, a form of "soft law" that crosses borders.
       

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