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Obligations & Contract law II summary weeks 6-10
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Summary of Obligations & Contract law II summary weeks 6-10 incl summary of the readings with the most important pieces of information!
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Week 6: Labour law part 1 - employmentReadings
● Bernd Waas (2010), "The Legal definition of the employment relationship", European
Labour Law Journal 2010, Vol. 1(1), 45-55.
○ Germany definition of employee = Typusbegriff
■ Also in germany is often the case that the rules and provisions of labor
law should not easily be evaded by the parties to the contract. There is
often talk about Rechtsformzwang, aka the parties have simply no other
choice than to conclude a contract of employment if they want to fix
certain rights and obligations
○ European law = no notion of the definition of ‘employment relationship’, besides
Art 39 of the Treaty.
■ They did agree on an uniform definition of ‘worker’, namely a person who
is for a certain period of time performing services for and under the
direction of another person in return for which he receives remuneration
■ Furthermore, Art 2(1) of Acquired Rights Directive states that an
employee is ‘any person who, in the MS concerned, is protected’
■ The EC states that it is up to the MS to decide what the definition is of
‘employment relationship’, but they are not entirely free in choosing it, bc
they need to secure the effet utile of EC law and they need to pay respect
to fundamental rights were national rules fall within the scope of
Community law (which incl the general principle of equality and
non-discrimination).
■ There are different arguments for and against allowing the EC to come up
w a definition, kijk meer op blz 50!
○ There is an increasing fragmentation of labour (law), bc atypical employment is
on the rise.
■ ‘Deliberate fragmentation’ is a strategy where national legislators may
consider making specific rules of labor law applicable to specific workers
only.
● But is it reasonable to differentiate between workers and
independent contractors if they are both entitled to social
protection? Doesnt that mean one falls inside and one outside the
scope?
■ An issue of ‘wilful fragmentation’ (vgm is dit zelfde als deliberate) of
labor law is to consider specific legal sub-regimes for different categories
of employees affording to them different rights and entitlements.
○ Should the employment relationship be the sole vehicle for the delivery of rights
and entitlements? (think about persons that are not personally dependent but
, economically dependent on labor law, they are a grey area between labor law
and commercial law)
■ Germany: quasi-salaried workers (arbeitnehmerahnliche personen) are
considered a sub-category which is in need of greater protection than
self-employed person.
● For ex, these quasi-salaried workers also enjoy the right to a
yearly holiday, just like ‘normal’ workers, and the labor courts are
competent for them as well.
● The characteristics of this category of quasi-workers are in section
12a of the Act on Collective Bargaining Agreements
(Tarifvertragsgesetz). The criteria are:
○ First, economic dependency (as opposed to personal
dependency or subordination);
○ second, the need for social protection; because of,
○ third, work performed personally without the aid of
subordinate employees and because,
○ fourth, either work is done mainly for one person or the
worker relies on one single entity for more than half of
his/her total income.
■ Italy: also acknowledges quasi-subordinate workers
● Antonio Aloisi (2015), "Commoditized workers. The Rising of On-Demand Work, a Case
Study Research on a Set of Online Platforms and Apps", January 2015
○ Sharing economy’ - nr of on-demand companies matching labor supply and
demand are on the rise.
■ Examples: Uber, Lift, Amazon Mechanical Turk
■ Virtual platforms and apps for mobile divided play the role of ‘invisible
infrastructure’, by connecting supply and demand and facilitating
interaction between individuals and firms. This increases flexibility.
■ Benefits: competitive with traditional options (cheaper & better)
○ It is not clear whether we are facing a digital version of ‘Taylorism’ (= the efficient
exploitation of work at the detriment of education and skill development of
workers)
■ These virtual markets threaten to dismantle traditional labor markets as
they do not seem to ensure a fair protection of workers’ rights.
○ ‘Uberization’ process:
■ Sharing economy can turn into ‘skimming economy’
■ Today the sharing economy is becoming professionalized, with two
evident outcomes → 1. sharers become factual workers, 2. Platforms
become intermediaries/middlemen in charge of developing the network
of connections and overseeing the property of transactions
■ We are also experiencing an organizational decomposition
■ Uberizing = trapping a set of innovative procedures into an
app-accessible service or sweatshop with lower entry barriers since
people monetize resources they already own
, ■ The insecurity that comes w this type of work results in a potential dismal
quality of social services rendered
■ In a not so distant future, being full-time employed by a corporation or gov
agency could probably be the exception rather than the rule
○ Crowdsourcing = the act of taking a job traditionally performed by a designated
agent (usually an employee) and outsourcing it to an undefined, generally large
group of people in the form of an open call
■ service providers are starting suing some companies (the car-‐‑hailing
app Uber and the cleaning platform Handy, for instance) “for allegedly
inappropriately classifying them as contractors when they don’t have
anywhere near the amount of freedom that that’s supposed to entail”
■ Click-wrap agreements = where u can only click i agree if u want to use
the service (vgm?)
○ Amazon mechanical turk:
■ ‘First’ robot ever built
■ It is almost certainly the largest crowdsourcing platform on the web, and
has become the first stop for many individuals and firms seeking cheap,
on-demand crown labor
■ Turkers (crowd workers) are highly educated office workers with
downtime, disabled persons or caretakers who are housebound, or felons
passed over by more traditional employers
■ The FLSA (Fair Labor Standards Act) only concerns “employees” that are
covered by labour laws such as minimum wage and antidiscrimination
statutes. This is a vicious circle. The definition of employee, the only
addressee of the regulation, offered by the FLSA is unfortunately narrow
and perilously meaningless: “any individual employed by an employer”.
But more than anything, the AMT Participation Agmt classifies a Turker as
an independent contractor, as previously explained.
■ Mturk does specify (blz 14) that reclassification of employment status is
possible tho!!
■ This multi-‐‑part test scrutinizes the presence of the following factors:
● “(i) whether there’s a right to control how the worker does his job;
● (ii) whether a worker has set hours or can work whenever he or
she wants;
● (iii) how the worker is paid i.e., by the hour (which points toward
employment) vs. by the job (which points toward an independent
contractor relationship;
● (iv) whether the business provides the tools to perform the job;
● (v) whether a written agreement exists classifying the worker as
an independent contractor or employee;
● (vi) the permanency of the relationship, with an indefinite term
pointing toward employment and a defined term pointing toward
an independent contractor arrangement;
● (vii) whether the work requires a special skill;
, ● (viii) whether the services rendered are an integral part of the
employer’s business”
Les
● Scope of labour law, in light of the emerging ‘gig economy’
● A standard contract of work is for an indefinite period of time with an employer. The
paradigm was that you would work at one employer for your whole life. An atypical
contract of work is for example a parttime employment, or an on-call employment. This
enables participation in the labour market while still being able to do other things.
Gig-workers are a good example of this. Labour law struggles to offer atypical
contractees proper facilitation.
● Topics to be covered today
○ Employment contract
○ Gig workers
○ Example: uber drivers
● A. Employment contract
● Criteria for an employment contract:
○ Two people engaged in a work relationship (contractual agreement)
○ One party (employee) commits to the performance of work
○ Under subordination of the other party (employer)
○ In exchange for pay (salary)
● General criteria to assess if someone is an employee or an independent
contractor:
○ 1. The work needs to be performed personally
■ u cannot subcontract the work to someone else.
○ 2. The (im)possibility of having control over one’s own work;
■ How u perform ur tasks
○ 3. The freedom (or not) of managing one’s own time schedule;
■ Do u always work when ur employer asks u?
○ 4. The way in which tasks are performed;
○ 5. The concrete dependency;
■ Of the one who delivers the work for the other party
■ Economic dependency
○ 6. The permanency of the relationship;
○ 7. The number of working hours;
○ 8. The ownership of equipment;
○ 9. The method of payment (p/hours vs p/project)
● Employee or independent contractor?
○ Example 1: employee
○ Yoga instructor A works for Namaste Yoga, a popular yoga chain.
○ Namaste Yoga does all the advertising, hiring, scheduling, and pays A
either by the hour or a percentage based on how many students attend
each class
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