Devel­op­ments in the clas­si­fic­a­tion of employ­ees and inde­pend­ent con­tract­ors in the Neth­er­lands are ongo­ing (see also our blog on this top­ic). How­ever, there are a lot of con­ver­sa­tions about this issue in Europe as well. For instance, the Coun­cil of the European Uni­on and the European Par­lia­ment reached a pro­vi­sion­al agree­ment on new rules for plat­form work­ers on 13 Decem­ber 2023.

 

Plat­form work: what does this entail?

Plat­form work involves under­tak­ings or indi­vidu­als using an online plat­form (often in the form of an app) to access oth­er com­pan­ies or indi­vidu­als to provide ser­vices or solve prob­lems for a fee. Hence, the plat­form serves to match sup­ply with demand. Plat­form work comes in many forms and con­tracts are made in vari­ous ways. Examples of plat­form work include deliv­ery ser­vices, trans­la­tion ser­vices, health­care ser­vices, clean­ing ser­vices or taxi ser­vices. The pan­dem­ic accel­er­ated the expan­sion of plat­form work, as hav­ing gro­cer­ies delivered, for instance, became much more com­mon. In 2022, about 28 mil­lion people were work­ing via a digit­al plat­form. This num­ber is expec­ted to exceed 43 mil­lion by 2025.

 

Employ­ee or inde­pend­ent con­tract­or?

One of the main reas­ons the EU aims to estab­lish rules for plat­form work­ers relates to the clas­si­fic­a­tion of employ­ees and inde­pend­ent con­tract­ors. Cur­rently, most plat­form work­ers in the EU oper­ate under a con­tract for ser­vices, thus form­ally as inde­pend­ent con­tract­ors. How­ever, many plat­form work­ers in prac­tice face the same rules and restric­tions as employ­ees and are there­fore con­sidered pseudo inde­pend­ent con­tract­ors. Many plat­form work­ers should have an employ­ment con­tract and enjoy the same pro­tec­tions as employ­ees.

 

New rules con­cern­ing plat­form work

As EU mem­ber states approach plat­form work very dif­fer­ently, the Coun­cil of the EU and the European Par­lia­ment reached a pro­vi­sion­al agree­ment on new rules for plat­form work­ers with­in the EU on 13 Decem­ber 2023. The two focus points cla­ri­fied below are:

1. A cor­rec­tion in the clas­si­fic­a­tion of inde­pend­ent con­tract­ors.
2. More trans­par­ent use of algorithms.

 

Cor­rec­tion in the clas­si­fic­a­tion of inde­pend­ent con­tract­ors

One goal is to com­bat pseudo inde­pend­ent con­tract­ing. Plat­form work­ers are con­sidered employ­ees (and not inde­pend­ent con­tract­ors) if their (work) rela­tion­ship with the plat­form meets at least 2 of the fol­low­ing 5 indic­at­ors:

• The max­im­um amount plat­form work­ers can receive.
• (Elec­tron­ic­ally) mon­it­or­ing of their per­form­ance.
• Con­trol over the alloc­a­tion or assign­ment of tasks.
• Con­trol over work­ing con­di­tions and restric­tions on choos­ing work­ing hours.
• Restric­tions on the plat­form worker’s free­dom to organ­ize work and rules regard­ing appear­ance or beha­vi­or.

Mem­ber states may add oth­er indic­at­ors to this list under their nation­al law. If 2 of the 5 indic­at­ors are met, then the digit­al plat­form must demon­strate that no employ­ment rela­tion­ship exists accord­ing to the applic­able nation­al law and prac­tice.

 

More trans­par­ent use of algorithms

Plat­form work­ers must be informed about the use of sys­tems for auto­mated mon­it­or­ing and decision-mak­ing. It must also be ensured that digit­al labor plat­forms can­not pro­cess cer­tain types of per­son­al data using these sys­tems. For instance, this includes per­son­al data con­cern­ing the emo­tion­al or psy­cho­lo­gic­al state of the plat­form work­ers or data related to private con­ver­sa­tions.

 

What next?

The pro­vi­sion­al agree­ment must still be approved by the Coun­cil of the EU and the European Par­lia­ment. After this approv­al, both insti­tu­tions will form­ally adopt the pro­pos­al, and it will be con­ver­ted into legis­la­tion. Fol­low­ing these form­al steps, mem­ber states will have two years to incor­por­ate the new dir­ect­ive into their nation­al legis­la­tion.

We will, of course, keep you informed of fur­ther devel­op­ments in this area.

 

Want to know more about everything related to the top­ic of inde­pend­ent con­tract­ors? Click here!