By Wilfred Chan
Gig companies across the globe employ a similar playbook: Use gobs of venture capital to undercut legacy firms, skirt labor law to keep costs low, then use their resulting market dominance to pass new, more favorable laws. That’s how companies such as Uber and Lyft helped pass Proposition 22 in California, a 2020 ballot measure that cut gig workers out from a state law that would’ve classified many of them as employees with the right to unionize and strike.
But Prop. 22 was ruled unconstitutional last year by a county judge, though gig companies are appealing the decision now. If the ruling stands, it would add to what advocates are describing as a growing global wave of legal victories for gig workers, as more courts recognize them as workers with rights, rather than the independent contractors companies claim they are. “Courts and legislatures around the world are seeing through the big lie,” says Jeffrey Vogt, the head of the International Lawyers Assisting Workers Network (ILAW), a coalition of more than 700 labor lawyers working in over 70 countries. “The courts are finding along many of the same lines that algorithms are in fact putting workers under subordination. And these cases have served as a basis to try and expand that jurisprudence in other countries.”
Those are described in a new report by ILAW that analyzes 30 recent employment cases across 18 countries and finds a “positive trend” in pro-worker legal decisions. Together with a similar report released last year, ILAW’s research makes up “the broadest collection of case law on this employment status question that’s out there,” says Vogt. The goal is to get the word out to workers, labor advocates, and researchers: “Whether you’re fighting Uber, Lyft, or Deliveroo, you should know that you have cases in other countries that are going the right way,” he says. “Lawyers are winning these cases, and you don’t have to litigate this yourself from square one.”
The latest report covers rulings made as recently as late October, when New Zealand’s employment court declared that Uber and Uber Eats drivers had an employment relationship with Uber, finding that the gig company was in fact controlling its workers as any boss would, and that the workers could be entitled to greater labor rights. (The court said it followed recent landmark rulings in the United Kingdom and Switzerland in rejecting a formalistic reading of Uber’s labor contracts, which claim the platform is simply a service provider that matches solo entrepreneurs with clients.)
And in August, an Israeli labor court approved a class action lawsuit against Wolt, a food delivery platform, by workers demanding standard employment benefits. In a similar argument, the court found that “Wolt had control and supervisory authority over the courier,” according to the report. A May ruling by a Mexican labor court came to the same conclusions, and ordered an unnamed digital platform company to back pay its workers’ social security, bonuses, and vacation time.
But the report also mentions a number of setbacks for gig workers. In Australia, for example, courts have opted for a strict reading of gig worker contracts—a move Vogt calls “particularly backwards”—rather than examining multiple factors at hand to determine whether a worker is an employee. ILAW’s report also notes that U.S.-based gig workers have been particularly disadvantaged by forced arbitration agreements, thanks to conservative Supreme Court decisions in recent decades that have upheld their enforceability, a major barrier for workers hoping to sue the gig companies. “The extent to which courts in the U.S. have sanctioned the ‘gig economy’ arbitration ruse appears to be a uniquely American phenomenon,” the report reads. “Although the companies attempt to pull the trick elsewhere, it has almost always been thrown out.”
The labor lawyer group’s report concludes with a warning that despite the pro-worker rulings in many countries, enforcement remains ineffectual—which suggests the gig companies will continue to violate the rules. “This is an industry in which employers have demonstrated over and over again that irrespective of what judges say, or the extent to which they are lambasted in the press, that they are willing to flout laws unfavourable to them,” the report reads. “Because the price of doing so has not been high enough.”