Robotic Automations

Some two years of talking about gig worker rights later and European Union lawmakers have finally reached a deal on the final shape of the Platform Worker Directive.

The development could deliver a significant boost for millions of gig workers laboring on digital platforms without being afforded workers rights. The EU estimates some 5.5 million people currently laboring for such platforms in the region may be wrongly classified as self employed (aka “bogus self employment”), meaning they are missing out on important labor and social rights protections.

The Commission presented its original plan to reform labor laws to boost protections for platform workers back in December 2021, setting out a presumption of employment for workers in a bid to flip the odds on gig economy exploitation. But the proposal proved contentious, with heavy industry lobbying from tech platforms such as Uber pushing for gig workers to be carved out of Europe’s employment protections.

There were also divisions between Member States over how much worker protection vs platform shielding they were prepared to commit to. But after a final trilogue, lasting more than 12 hours, a provisional agreement has been clinched.

Rappoteur and MEP Elisabetta Gualmini trumpeted the deal as “historic”, claiming the directive would advance workers rights for millions of gig workers across Europe.

“It is an historic deal because, basically for the first time, we build up a framework of social rights for millions of workers in Europe who are among the most the precarious,” she said during a press conference this morning to announcing the provisional agreement. “This is the first act that deals with the labour market of the future.”

The deal that’s been provisionally agreed means a presumption of an employment relationship between a gig worker and a platform will be triggered when two out of a list of five “indicators of control or direction are present”, as the parliament’s press release puts it.

“This list can be expanded by Member States. The presumption can be triggered by the worker, by their representatives, and by the competent authorities on their own initiative. This presumption can be rebutted if the platform proves that the contractual relationship is not an employment relationship,” it adds.

The agreement also contains transparency provisions that will require platforms to provide information to individuals performing platform work (and to their representatives) about how the algorithms that manage them work; and how their behaviour affects decisions taken by automated systems.

That looks important because while the EU’s General Data Protection Regulation (GDPR) already provides some rights to data subjects subject to automated decision-making, to be provided with information about the logic used by such algorithms, it’s fair to say that gig workers who have tried to use the GDPR to extract meaningful insights on the algorithms used to manage (and even fire) them have had to resort to lengthy and frustrating court battles to try to extract useful data.

Worker data access rights advocacy organizations will be hoping the new directive makes it far harder for platforms to find excuses not to hand over workers’ data.

The provisionally agreed new rules will also ban platforms from taking “certain important decisions”, such as dismissals or decisions to suspend an account, without human oversight.

Similarly, the GDPR contains a right to human review of legal or significant decisions taken by automation — but, again, gig workers have had to take platforms to court to challenge them over so-called ‘robo-firings’. So having an explicit law that bans such practices should force platforms to reform their practices.

Per the parliament, the agreed text also ensures “more human oversight on the decisions of systems that directly affect the persons performing platform work”; and obliges platforms to “assess the impact of decisions taken or supported by automated monitoring and decision-making systems on working conditions, health and safety and fundamental rights”. So conducting data protection impact assessments looks set to be a hard requirement for complying with the new law.

Another prohibition that’s been agreed is a ban on platforms from processing certain types of personal data of workers, including personal beliefs, private exchanges with colleagues, or when a worker is not at work — with the Directive billed as beefing up data protection rights for platform workers.

During the press conference Gualmini also suggested the agreed text in the area on consent to data protection goes “beyond the limits of the GDPR”, dubbing that part of the deal “extremely innovative”.

Other provisions in the provisional deal include a requirement for platforms to share information on self-employed workers in their employ with competent national authorities and representatives of those performing platform work, such as trade unions.

Measures to prevent platforms from circumventing the rules by using intermediaries has also been agreement — a practice that’s stepped up considerably in Spain since the country introduced its own labor reform, back in 2021, with the aim of forcing platforms to hire delivery workers.

“Member states will have to make sure that persons performing platform work working through intermediaries enjoy the same level of protection as those with a direct contractual relationship,” the parliament said on that.

Some key details of exactly what’s been agreed remain under wraps — and full visibility and analysis of the ramifications will likely have to wait for a consolidated text to emerge in the coming weeks/months.

To wit: Dragoş Pîslaru, chair of the Employment and Social Affairs committee, rebuffed a journalist’s question asking what the five “indicators” the co-legislators have agreed may be used to trigger a process that could lead to the reclassification of platform workers as employees — saying they could not go into the “exact details” of what is in the provision text agreed last night at this point. So how easy (or otherwise) it might be for to trigger reclassifications of platform workers is still unclear.

As the law is a directive, not a regulation, there will also be scope for some variation across Member States, depending on how they choose to implement it — but the idea for the pan-EU law is to set a minimum standard, leaving countries free to pass rules that further raise protections for workers.

The final text still needs to be voted on by the Council and Parliament before it can be adopted as pan-EU law. What implementation period has been agreed also isn’t yet clear. But today’s political deal signals the train has now left the station.

“This really is a historic agreement,” added Gualmini. “I doubted that we’d be able to get to such a good compromise. Because we now have the possibility to look at what’s happening in this labour market, move the burden of proof, ensure that we don’t have these people being falsely deemed to be self employed and not leaving it up to those people to prove that they are not self employed but, rather, it being the platform that is responsible for demonstrating that that employee really is self employed.

“And so this is a real improvement for the social rights and labour rights of millions of workers. This is the kind of step that we’ve never seen before in Europe. Looking at the algorithms, improving transparency. Our text is incredibly ambitious. And I am really incredibly happy that we are now managing to provide protection [for gig workers]. Now of course we want to have competition — fair competition — between multinationals but we also want to protect workers who in this labour market should have the support that they deserve, should not be abused by these companies as often was the case in the past.”