For years we have been witness to a range of debates, formulations, and written proposals on the future of work. The impact of digitalization and technological change sparks many of these debates, as do trends that have long existed as a result of changes in how the workforce is composed, business models, and, ultimately, the process of globalisation that accelerated at the end of the last century.
In this context, a new document has appeared regarding this future – which is already the present – of work. The white paper ‘A Better Deal’, recently published by the Uber corporation, offers some interesting reflections: It is always positive that a controversial company in the area of labour rights puts a discussion about labour relations in platform work on the table, which in its case concerns both Uber Eats as well as urban transport.
The document begins by asking a relevant question: What should good platform work look like? Their response is based on five pillars: flexibility; access to social protections and benefits, including for sickness and injury; fair and transparent earning opportunities; growth, learning and development opportunities; and ‘having a voice’, that is, the right to be heard and get action on feedback.
The document develops these principles, peppered here and there with internal surveys, self-indulgent statements, excerpts from texts and speeches that support these ideas, and other declarations.
Using old techniques from political communication and marketing strategies, Uber knows very well that terminology matters: for example, the document often refers to the invaluable “independent contractors” or independent workers, usually in opposition to – contemptuously – “traditional and hourly employees”; they speak of “earning” rather than “working”; they mention “people” rather than workers (for example, “The people who choose to earn with Uber, etc.”). Other paradigms that stand out are “being your own boss”, “the freedom of self-entrepreneurship”, etc., praised in contrast to the trade unions (only mentioned twice indirectly). Additionally, Uber holds itself up as an advocate of a new vision of business and work, opposed to “outdated regulations” that do not meet the technology platforms’ need for flexibility.
Throughout the document, Uber develops the concept they call true ” two-way flexibility”, in contrast to other companies that only offer “one-sided flexibility, where managers set specific working hours on zero-hour contracts depending on consumer demand”. According to Uber, this “authentic” flexibility gives drivers and couriers total control over the time they want to work. Thus, Uber considers itself to be more “social” – or less anti-social – than other (bad) companies using zero-hour contracts, a very discouraging reference from the perspective of the European social model.
The document dwells on the main thesis: traditional employment models do not adapt to the flexible and dynamic relationship that Uber has with drivers and couriers, in which workers can come and go as they wish. Uber respects “the independence of workers: total freedom to set their schedules, ability to unilaterally choose when they connect to the platform, where and for how long, and total freedom to use other applications, including those of the competition”.
Uber supports this thesis with the example of an open letter sent by “three of the main courier associations” to the Spanish Ministry of Labour. In it, these associations warn that “forcing a change in our status would deny us the freedom and flexibility that is so valuable to us”.
However, it is expected that the Spanish government – after long and difficult consultations and negotiations with social representatives – will soon establish a new regulatory framework that will protect riders and recognize them as employees and not as being self-employed or false freelancers, following the landmark Supreme Court ruling confirming this employment status for Glovo’s riders. Along the same lines, several High Court decisions have been made in various countries, including recently in the Supreme Court of the United Kingdom, on February 19, stating that Uber drivers are not self-employed, but rather are workers. Other decisions worth mentioning are those from the German Federal Labour Court (recognizing a crowdworker as an employee) in December 2020 and the recent decision from the Italian judiciary, in February of this year, with enormous impact, stating that Uber Eats, Just Eat, Deliveroo, and Glovo are obligated to hire and integrate into their staff some 60,000 people who currently work as (false) freelancers. They were also given fines in the amount of 733 million euros.
The strategy of victimisation
In the white paper, Uber presents itself as a victim of local European legislation. For example, this is the case in Geneva (and other cities) where some court rulings forced Uber Eats to classify couriers as “scheduled employees” (using Uber’s peculiar terminology) instead of “independent contractors”. This has had disastrous economic and social effects on employment (a thousand people “left without work”) and on the city’s economy.
Despite this feeling of victimisation, Uber’s work reputation is not exactly buoyant. Its business model appears to be far from sustainable, relying mainly as it does on low labour costs and other ways of circumventing national regulations, all of which apply to competing companies in the transport field. National labour legislation is often ignored on the grounds that the business model used is not a transport company, but rather a simple application that matches supply with demand in the platform economy. The Court of Justice of the European Union (CJEU) disputed this argument in 2017, declaring that the defunct UberPOP service was indeed a transport company that had to comply with national transport laws. Somewhat surprisingly, on December 3, 2020, the CJEU ruled that Uber’s shared-transport apps (UberX, different from its other shared-car service, UberPOP) could be classified as internet companies if they meet certain terms and, consequently, be regulated under the EU e-Commerce Directive. On this basis, if Uber or other similar companies can prove they are online platforms, new opportunities within the EU legal framework might open up for them.
Uber has created tensions and conflicts in all the countries where it operates. The legal disputes that have always accompanied the company appear to be endless. In 2020, a group of unionized Uber drivers in the United Kingdom filed a complaint in the Netherlands – country where Uber has its registered office in Europe, you can imagine the reasons why – alleging a violation of the General Data Protection Regulation (GDPR), as the company does not provide them with full access to the personal data hosted on the application. They also claim that Uber has not provided sufficient information on the criteria used for the automated decision-making and profiling (algorithmic responsibility) that takes place on the driver application and other systems used by Uber. In other words, Uber’s data controllers should explain how the algorithm works, providing “suitable safeguards” under Article 22 of the GDPR. This is a complex case, happening in parallel to the discussion on the Digital Services Act proposed by the European Commission in December 2020, which establishes new rules of accountability for platform services.
Recent experience in California
The ‘A Better Deal’ document praises California’s Proposition 22, which classifies platform drivers in this U.S. state as independent contractors rather than salaried employees of the company. The result of the vote amends previous legislation (Assembly Bill 5 of 2019, AB 5) which extended the definition of “employees” to include workers in the platform (on-demand) economy. This rule was adopted as a result of a 2018 California Supreme Court ruling that established applying what is known as the “ABC” test to verify whether a worker was a salaried employee or an independent contractor.
Surprisingly, at least in a European culture based on the rule of law, Uber, Lyft, and other companies in the platform sector refused to comply with law AB 5 and reclassify their workers as employees. On the contrary, they delayed applying the law, on the one hand questioning its constitutionality and, on the other, claiming to need time for their workers to adapt to the new situation. A delay strategy was launched while they began a campaign to request a ballot measure to repeal the rule in the State of California, which was held simultaneously with the November 2020 presidential election. Uber and its allies contributed more than $200 million to the campaign in support of this initiative, known as Proposition 22, to repeal law AB 5. The powerful campaign financed by the platforms praised the benefits of the supposed flexibility desired by its drivers through widely publicized statements from some of them, as if they represented the company’s vast group of workers, something that, incidentally, is reminiscent of what happened with the letter from the courier associations to the Spanish government, mentioned above. Beyond analogies, these “made in the USA” practices reveal interesting lessons for European democracies about the power of money to challenge legislation passed in the parliaments.
It is true that Proposition 22 provides certain benefits that self-employed workers often do not receive in the United States. For example, a health insurance stipend, qualified minimum income, compensation for certain vehicle expenses, and insurance to cover accidents and/or injuries at work. Although these benefits improve the working conditions from prior to legislation AB 5, on average they remain lower when compared to salaried employees, while the right of these workers to organize or negotiate their working conditions collectively continues to be denied.
According to the document, Uber publishes the results of periodic surveys aimed at all drivers and couriers across Europe to “ensure workers on the platform have a forum to provide their feedback”. The results of one of these surveys show “a clear preference for direct channels that better respond to individual needs. 33% of European workers on our platform indicate that the Uber app is their preferred feedback route”, while only 7% of drivers and couriers prefer to choose “independently organised worker representatives”. We were unable to get the technical description of this survey, and whether or not it was actually done, through the Uber app, which would call into question the anonymous nature of the responses.
The underlying argument throughout Uber’s narrative is based on the absolute value of the “flexibility” that drivers and passengers want. Uber proposes that workers on the platform “be able to exercise their right to make their voice heard and know that their comments will be taken into account”. Given that the population of drivers and couriers on the platform is “highly changeable, with complex and varied interests”, Uber concludes that “diverse forms of representation are needed that can be tailored to meet workers’ different needs …. and to share their feedback with us in multiple ways: regular large-scale surveys; webinars; round table discussions; driver and courier associations and unions; and driver hotlines and calling campaigns”. Therefore, “social dialogue needs to integrate these differences, not eliminate them, if it is to improve working conditions for platform workers and preserve the flexibility they value”. It is a concept of social dialogue that mixes channels to encourage and stimulate direct participation from each employee in a company – if Uber considered its workers as employees, not independent contractors – with indirect participation by those workers having a long and established tradition in Europe, that is, with the right to organize and be represented through trade unions or other forms of collective representation.
The ‘third way’
Beyond the document’s content, what it confirms is Uber’s strategy to promote its model of labour relations and working conditions based on introducing a “third way” for the status of workers. This hybrid status is shared, at best, by other companies in the platform economy (Just Eat, Deliveroo, Glovo, etc.). The model Uber wants to discuss can be adapted to different markets and regions, that is, to the EU, applying solutions inasmuch as they “reflect European social models and workers’ rights, promoting the principles of the European Pillar of Social Rights”, whose Action Plan the European Commission has recently published.
In this regard, the document contributes to existing debates on these platform-based companies with the European Commission, national governments, trade unions, and social interlocutors. It certainly seems that business organisations (taxi organisations, businesses and ‘classic’ distribution and courier companies, etc.) do not share these companies’ proposals.
The debate on the nature of the labour relationship in different types of work taking place on platforms is a central issue. Providing guidelines to clarify the legal framework for labour and employment applicable to these new forms of work is a ball that is now in the European Commission’s court. This in no way undermines the fact that, in the meantime, partial regulations addressing the nature of employment and riders’ working conditions are being discussed and taking effect in countries such as Spain, France, or Italy.
In any case, the document “A better Deal” and its proposals is welcome, expressing as it does a vision of the future of work … according to Uber.