GENERAL NOTICE

In January 2025, this online platform will be integrated into Boomportaal (www.boomportaal.nl), after which this platform will be discontinued. From that moment on, this URL will automatically redirect to Boomportaal.

DOI: 10.5553/EELC/187791072021006002012

European Employment Law CasesAccess_open

Case Reports

2021/23 Crowdworking: An occupation between self-employment and dependence (GE)

Keywords Employment Status
Authors
DOI
Show PDF Show fullscreen
Abstract Author's information Statistics Citation
This article has been viewed times.
This article been downloaded 0 times.
Suggested citation
Katharina Gorontzi and Jana Voigt, "2021/23 Crowdworking: An occupation between self-employment and dependence (GE)", European Employment Law Cases, 2, (2021):120-122

    The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content.

Dit artikel wordt geciteerd in

    • Summary

      The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content.

    • Facts

      The defendant (crowdsourcer) provided a platform through which companies could place certain orders/jobs. The defendant posted these jobs on its platform and contractors (crowdworkers) registered with the defendant could accept these orders. Such jobs might include taking a photo of a product shelf or answering a few questions about an advertising poster at a bus stop.
      The defendant and the contractors, including in this case the plaintiff, concluded a so-called ‘basic agreement’, including the General Terms and Conditions of Business and Use. The plaintiff accepted these and downloaded the required app on his smartphone.
      This ‘basic agreement’ could be terminated at any time. The General Terms and Conditions of Business and Use stipulated, among other things, that a contractual relationship between the defendant and the crowdworker only existed upon acceptance of an order. No contractual relationship arose between the crowdworker and the client company (so-called indirect crowdworking). The orders had to be carried out according to the defendant’s detailed specifications. After correct execution of an order, the crowdworker received the agreed remuneration. A level system was implemented in the form of a rating system. The level increased with the number of jobs completed and enabled crowdworkers to accept multiple jobs at the same time. This way, they could complete them on one route and thus, in effect, earn a higher hourly wage.
      However, the crowdworker was free to accept or decline an order at any time. There was no contractual entitlement to job offers. There were no specifications regarding the place of work or working hours. However, project-related content and time specifications had to be adhered to in accordance with the respective order. Since 2017, the plaintiff worked an average of 20 hours per week for the defendant. His average monthly remuneration was approximately € 1,750. The plaintiff’s task was usually to carry out product presentation checks, for example in gas stations, within a specified period of time, take a photo of the presentation and send it to the defendant. The plaintiff mainly carried out so-called ‘tool checks’. These were checks that were conducted after prior notification, primarily at gas stations. For this purpose, the plaintiff had letters of legitimation on the letterhead of the respective customer. In addition, the plaintiff carried out so-called ‘mystery checks’ in which he did not identify himself as an employee of the defendant. The job offers contained specifications on the place and time of the activity as well as a precise description of the individual steps to be taken in carrying out the job. In addition to the estimated time required, the job description also specified a time window within which the job was to be performed. This was regularly two hours.
      After the plaintiff received an email stating that, to avoid future disagreements, he would no longer be offered any jobs via the platform and his account would be closed, he sued for a declaration that an employment relationship existed between him and the mediating platform.
      The Munich Regional Labour Court (Landesarbeitsgericht, ‘LAG’) ruled – as the Munich Labour Court (Arbeitsgericht, ‘ArbG’) had also done previously (judgment of 20 February 2019, 19 Ca 6915/18) – that the plaintiff was not to be classified as an employee (judgment of 4 December 2019, 8 Sa 146/19).

    • Judgment

      In contrast to the previous judgments, the BAG found that the plaintiff performed work in a manner typical of an employee, bound by instructions and determined by others in personal dependence. Even though he was not contractually obligated to accept offers from the defendant, the organisational structure was designed in such a way that the crowdworker would continuously accept bundles of simple, step-by-step contractually specified small orders in order to complete them personally. The level system would encourage the personal execution of the individual order.

    • Commentary

      The BAG’s decision attracted enormous attention. Until this decision, the higher regional courts usually assumed that no employment agreement would be constituted. In a comparable case, the LAG of Hessen (decision of 14 February 2019, 10 Ta 350/18) denied the worker concerned an employee status. The case concerned a bus driver who, without owning his own vehicle, had applied to a bus company for only one bus trip via a platform. The court decided that the bus driver was not an employee. It would tend to argue against the status of employee if the business relationship lasted only a few days and there was no integration into the business operations of the client. An economic dependence was not recognisable.
      Against the background of the BAG’s decision in the case at hand, many employers must put their contractual relationships with freelancers to the test. If freelancers are to be qualified as employees in consideration of the BAG’s present decision, they will not only be subject to the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz,‘KSchG’) if the other requirements are met. In particular, social security contributions must also be paid in arrears. Furthermore, the possibility of criminal liability under Section 266a of the German Criminal Code (Strafgesetzbuch, ‘StGB’) for withholding social security contributions must be kept in mind.
      In this regard the Directive on Transparent and Predictable Working Conditions in the EU (Directive 2019/1152/EU) is intended, among other things, to give crowdworkers more rights, making their employment more predictable. Crowdworkers should be able to refuse orders without repercussion and receive compensation if the execution of the order is not cancelled in time. However, the new Directive has not yet been transposed into German law. A detailed article on the new Directive can be found at: https://efarbeitsrecht.net/crowdworking-neue-eu-richtlinie/.

    • Comments from other jurisdictions

      Austria (Lukas Wieser, Zeiler Floyd Zadkovich): This judgment is very interesting from an Austrian perspective, as we are currently seeing a lively academic debate about the employment law qualification of crowdworkers but are missing Austrian Supreme Court cases on the topic so far. The discussion amongst Austrian legal scholars especially revolves around the density of control exercised by the platform over the employee. According to Austrian legal scholars such control density may in particular be given through a rating system, strict time limits and controlled access to the platform. For the Austrian discussion it is very interesting that the German Federal Labour Court especially based its qualification on the implemented level system, which incentivized the crowdworker to be increasingly active on the platform. Thus, this judgment may also bring a new aspect into the discussion in Austria. However, as can be seen by the different qualifications of the relationship by the first two instance courts and the German Federal Labour Court the question whether crowdworkers qualify as employees will also in the future be controversial and dependent on the individual facts of each case.

      Romania (Andreea Suciu and Teodora Mănăilă, Suciu | The employment law firm):
      Although such types of platforms operate in Romania as well, no case law has been generated so far in relation to the reclassification of such contractual relation (the case law is limited only to the case of Uber drivers, i.e. the decision in Star Taxi App SRL — v — Unitatea Administrativ Teritorială a Municipiului București, Consiliului General al Municipiului Bucureșt in Case C-62/19). Moreover, Romania has yet to initiate discussion on the transposition of the Directive on Transparent and Predictable Working Conditions in the EU (Directive 2019/1152/EU). A proposal is expected to be released by the Ministry of Labour by the end of this month, however, no preliminary talks have taken place.
      The Romanian Labour Code prescribes the employment relation as a subordination relation between the parties. In the absence of such central element, the crowdworker may not be qualified as an employee. Further, the Romanian Fiscal Code provides additional criteria to determine whether a collaboration between two parties can be considered as a freelance relation, respectively:

      1. The person performing the work (the service provider) has the freedom to choose where, when and how they perform their work (all three elements must be fulfilled for the criteria to be considered fulfilled – in the case at hand, the crowdworker only fulfilled one element, i.e. freedom to choose/reject the jobs).

      2. The person is free to work for several customers (criteria fulfilled).

      3. The person bears the risks, including the financial and business risks, inherent to the work performed (criteria not fulfilled).

      4. They use their own equipment for the work (criteria fulfilled).

      5. The person invests their physical or intellectual capability to perform the work, in accordance with its specific features (criteria not fulfilled as the job specifics were set by the platform).

      6. The person belongs to an occupational organisation or association representing, regulating and overseeing the occupation (criteria not fulfilled).

      7. The person is free to perform the work themselves or with the help of employees or colleagues (criteria not fulfilled).


      For an activity to be considered independent, at least four of the above criteria need to be met, otherwise the relationship will be classified as dependent (subordinate). By applying the criteria, it appears that from a tax perspective the relationship will be subject to tax obligations specific to employment relations. Consequently, such conclusion will entail a reclassification of the contractual relation as an employment relation.
      Recital 8 of Directive 2019/1152 makes a clear reference that on-demand workers, intermittent workers, voucher-based workers, platform workers (i.e. crowdworkers), trainees and apprentices can fall within the scope of the Directive, subject to the fulfilment of the criteria developed by the ECJ in determining the status of a worker. Thus, it is a clear indication that a separation from the specifics of employment law cannot be made by provision of law but only on a case-by-case analysis.
      The decision in the Lawrie-Blum case (C-66/85) was listed among the case law expressly made reference to by the Directive. The ECJ founded its conclusion in relation to the classification as worker (benefiting of employment protection) on the direction and supervision received by the person in question when performing their tasks.
      We agree on the manner in which the German Court replicated the analysis of the ECJ and referred to the jobs performed by the plaintiff and how it reflected the dependence of the work performed towards the platform intermediary (i.e. the reference to the microjobs performed and how their division determined the fulfilment of additional jobs and the increase of the hourly rate (‘salary’)).
      Further, it can be argued that the Court made a rather quantitative comparison between the missing elements and the present elements specific to an employment relationship, as a whole.
      The conclusions and the case law generated so far by the German courts reflect the hybrid nature of this contractual agreement which may not always check all the classic characteristics of the employment relation but will always be close to reaching it. Nevertheless, it remains to be seen how the Romanian legislator, which is of a much more conservative view, will choose to regulate this topic and whether it will take into consideration the complex economic background of such relations.

      Subject: Employment Status

      Parties: Unknown

      Date: 1 December 2020

      Case number: 9 AZR 102/20

      Internet publication: https://juris.bundesarbeitsgericht.de/cgi-bin/rechtsprechung/document.py?Gericht=bag&Art=pm&pm_nummer=0043/20 (press release) and https://juris.bundesarbeitsgericht.de/cgi-bin/rechtsprechung/document.py?Gericht=bag&Art=pm&Datum=2021&nr=25027&linked=urt (judgment)


Print this article