The current social protection discourse, gig economy within the advent of COVID-19: some emerging legal arguments

ABSTRACT

Gig workers are classified as independent contractors, a designation often accompanied by limited rights – a recurring theme within employment laws across diverse jurisdictions. The advent of the COVID-19 pandemic has underscored the necessity for enhanced protections and benefits for gig workers. Many in this category have been disproportionately affected by the economic downturn and health risks associated with their work. Amidst evolving case law and legislative efforts, the recognition has grown that gig workers may require additional safeguards. There is an increasing argument that platforms should bear a measure of responsibility to ensure social protections for gig workers.

KEYWORDS:

• Gig economy
• social protection
• dependent employee
• COVID-19
• inequality
• platform

1. Introduction

Imagine you are a driver for Uber, a food delivery person for Deliveroo, or a freelance writer for Upwork. You enjoy your work’s flexibility and autonomy but face many challenges and uncertainties. You are unsure if you are an employee or a self-employed person and what rights and protections you have. You are not covered by minimum wage, sick leave, health insurance, or social security. You depend on a single platform or employer for your income, but you have little control over your work conditions. You are one of the millions of workers in the emerging category of dependent workers.

The dependent worker category refers to those workers who do not have an employment contract as a traditional employee but are economically dependent on a single employer or platform for their source of income. This category may include gig workers, such as those who provide services through platforms like Uber, Airbnb, or TaskRabbit. The COVID-19 pandemic has exposed the vulnerabilities of gig workers due to a lack of access to basic protections and benefits that come with traditional employment (OECD, 2018).

In this presentation, the paper will examine the current social protection discourse and the legal arguments surrounding gig workers in the context of the COVID-19 pandemic and the gig economy through case law from different jurisdictions. The paper will argue that there is a need to clarify and harmonize the legal status of gig workers across various jurisdictions and platforms, considering their degree of autonomy, subordination, dependency, and control over their work. The paper will also discuss some legal arguments for extending social protection to gig workers: reclassification of gig workers; determination of the degree of autonomy, subordination, dependency and control over gig work; platform liability; and the right to organise within the gig economy. Finally, the paper will evaluate the legal arguments and explore some pathways to consider, which may pave the idea for extending social protection to gig workers into the mainstream labour law development discussions.

2. Justification of the gig economy and the social protection discourse surrounding gig workers

Understanding how workers operate within platform-based services is crucial to grasp the case’s intricacies (Requirements, uber.com/za/en; Deliver with Deliveroo, Deliveroo.co.uk; Joining taskrabbit, Taskrabbit.com). To join the platform, individuals typically apply online, undergo an onboarding process, and gain access to the platform’s app. Once approved, they enjoy the flexibility to work as much or as little as they desire. There are no mandated minimum or maximum work periods; workers can choose their schedules, whether specific time slots or weekly or occasional shifts.

However, workers are expected to accept tasks or jobs once logged into the platform’s app (Requirements, uber.com/za/en; Deliver with Deliveroo, Deliveroo.co.uk; Joining taskrabbit, Taskrabbit.com). They must adhere to the platform’s prescribed behaviors, such as following set pricing and route guidelines and communicating with customers strictly through the platform. Refusal of too many tasks may result in a temporary suspension from the platform. Workers must perform the tasks themselves and cannot assign someone else to complete the work.

In this way, gig workers are often categorized as independent contractors, a classification fraught with limited rights, a recurring theme in employment laws across various jurisdictions. This contentious matter remains a subject of fervent debate, pitting worker advocacy groups and legal experts against the complexities of economic and legal landscapes (Katsabian & Davidov, 2022). Unpacking the motivations behind the creation and perpetuation of such a classification reveals an intricate tapestry of factors shaped by differing contexts. One of the main arguments for maintaining a category of independent contractors is that it allows companies to operate more flexibly in their staffing arrangements (Katsabian & Davidov, 2022). Independent contractors are generally considered to have more control over their own work and are free to accept or decline work as they see fit (Rhinehart et al., 2016). This flexibility can benefit both the worker and the company, allowing for a more fluid and adaptable workforce.

Another reason why companies may prefer to classify workers as independent contractors is because it can save them money on payroll taxes, benefits, and other employment-related expenses. By classifying workers as independent contractors, companies may be able to avoid providing benefits such as health insurance, workers’ compensation, and paid time off (Rhinehart et al., 2016). In some cases, the creation or maintenance of the category of independent contractors with limited or no rights may be influenced by political factors such as lobbying from industry groups or pressure from influential companies (Johnston & Land-Kazlauskas, 2019). These factors can make it difficult for policymakers to implement changes that would give more rights and protections to gig workers (Johnston & Land-Kazlauskas, 2019). The classification of workers as independent contractors can be a legal grey area, with different countries and jurisdictions having other criteria for what constitutes an independent contractor versus an employee – it provides a legal buffer for companies, allowing them to avoid legal challenges or liability related to misclassification (Cohen et al., 2023). Such avoidance absolves the platforms from direct liability for gig workers’ working conditions, wages, and benefits (Johnston & Land-Kazlauskas, 2019). Instead, the platforms generally maintain that they merely provide a technology platform connecting service providers and users. At the same time, the relationship and terms of engagement are determined independently by the parties involved (Rhinehart et al., 2016).

However, proponents of platform liability argue that these platforms play a significant role in shaping gig workers’ working conditions and experiences (Lane, 2020). They assert that platforms should be held accountable for ensuring fair wages, reasonable working conditions, and social protections for gig workers. They argue that because platforms exercise control over various aspects of gig work, including setting prices, establishing rules and policies, and rating systems, they should bear some responsibility for the well-being of the workers who rely on their platforms (Lane, 2020).

In addition, advocates for platform liability often contend that gig workers, despite being classified as independent contractors, gig workers face similar vulnerabilities and risks as traditional employees (Johnston & Land-Kazlauskas, 2019). They argue that gig workers often lack access to essential benefits and protections such as healthcare, retirement plans, unemployment insurance, and workers’ compensation (Johnston & Land-Kazlauskas, 2019). They believe that by holding platforms accountable for providing social protection measures, gig workers can be afforded greater economic security and stability (Johnston & Land-Kazlauskas, 2019).

Opponents of platform liability, on the other hand, argue that imposing such responsibilities on platforms would undermine the flexibility and innovation that gig work provides (Lane, 2020). They contend that platforms primarily serve as intermediaries, enabling individuals to connect and engage in independent economic activities (Lane, 2020). They assert that placing liability on platforms would increase costs and burdensome regulations, potentially stifling the gig economy’s growth and limiting opportunities for workers and consumers (Lane, 2020).

Overall, the reasons behind placing or maintaining a category of independent contractors with limited or no rights can be complex and multifaceted. While there may be some benefits to this classification for companies and workers, it is essential also to consider the potential drawbacks and to work towards solutions that provide more rights and protections for gig workers Koutsimpogiorgos et al. (2020).

The COVID-19 pandemic has highlighted the need for more protections and benefits for gig workers, many of whom have been hit hard by the economic downturn and health risks associated with their work Ravenelle et al. (2021). The COVID-19 pandemic arguably further exposed and exacerbated inequality, with gig workers being among the most vulnerable to the economic impacts of the pandemic. The lack of basic social protections for gig workers, such as sick leave and health insurance, made them particularly susceptible to the health and economic consequences of the pandemic. Recent studies, which involved conducting detailed interviews and surveys with 35 gig workers from affluent backgrounds, unveiled the challenges these individuals face regarding job stability and income fluctuations Ravenelle et al. (2021). Additionally, they highlighted the lack of autonomy in their work due to the constant pressure of self-promotion. Ravenelle et al. (2021). Moreover, regardless of their economic status, gig workers are susceptible to sudden unemployment without formal dismissal, given their status as independent contractors (Lew et al., 2021). The COVID-19 pandemic likely worsened the precariousness of gig work, as decreased demand during the pandemic could lead to immediate unemployment (Lew et al., 2021). This underscores how the uncertain nature of gig employment may have made gig workers particularly vulnerable to the heightened turbulence in the labour market during the COVID-19 crisis. Throughout the COVID-19 pandemic, many gig workers turned to gig employment after losing their traditional jobs due to the pandemic’s impact, often viewing gig work as their sole means of income (Lew et al., 2021). While numerous employers transitioned their employees to remote work arrangements during the pandemic, gig workers in app-based sectors like Uber, Lyft, Door Dash, and Instacart continued to operate outside their homes, thereby increasing their exposure to COVID-19 and jeopardizing the health of themselves and their families. Research conducted by the Community Service Society of New York revealed that approximately 40% of app-based gig workers or their family members contracted the coronavirus, compared to 26% of employees with standard jobs and 21% of self-employed individuals not engaged in gig work (Lew et al., 2021).

A study conducted among 500 app-based gig workers, including drivers for Uber and Lyft and food delivery drivers for Door Dash, in New York City revealed that these workers earn below the state’s minimum wage of $15 per hour (McGeehan, 2021). After factoring in expenses such as purchasing smartphones, electric bikes, and other necessary equipment, their hourly earnings range between $6.57 and $7.87 (McGeehan, 2021). These findings underscore the challenges associated with gig work, including low wages, unpredictable work demand, and income instability, which may have hindered gig workers from establishing financial safety nets against economic crises like the one induced by the COVID-19 pandemic (McGeehan, 2021). The pandemic has shed light on the precarious nature of employment for many gig workers. For example, research based on data from gig workers on Amazon’s Mechanical Turk platform, collected between February and April 2020, indicates that despite significantly increasing their work hours during the pandemic, these workers did not experience an improvement in their financial circumstances (Reynolds & Kincaid, 2023).

This research poses a question: Is gig work an emerging determinant of inequality? To address the question, there are several factors to probe into: First, income inequality is prevalent among gig workers as they often lack the stability and benefits of traditional employment (ILO, 2022). Their earnings are typically based on a per-task basis, resulting in irregular and unpredictable income (ILO, 2022). Without access to healthcare, retirement plans, and paid leave, gig workers struggle to meet their basic needs, while those in traditional employment enjoy more financial stability and employer-provided benefits (ILO, 2022).

Secondly, gig workers face limited worker protections compared to traditional employees. Classified as independent contractors, they are not entitled to the same legal protections and benefits, such as minimum wage laws, overtime pay, protection against unfair dismissal, and workers’ compensation (Cohen et al., 2023). This unequal treatment exposes gig workers to exploitation and hampers their ability to address workplace grievances effectively.

Furthermore, the lack of social safety nets for gig workers contributes to inequality. They often do not have access to unemployment benefits or paid sick leave, leaving them financially vulnerable during unemployment, illness, or other unforeseen circumstances (ILO, 2022). The absence of these safety nets exacerbates financial hardship and perpetuates inequality among gig workers.

Another significant factor is the power imbalance between gig workers and the platforms or companies they work for (Lane, 2020). Gig workers typically have limited bargaining power, with platforms controlling the terms and conditions of work, including pricing, ratings, and task allocation (Johnston & Land-Kazlauskas, 2019). This power imbalance enables exploitative practices such as low wages and inadequate job security, further widening the inequality gap.

Recognizing and addressing these disparities is crucial for creating a more equitable and inclusive labor market. Efforts should focus on implementing adequate worker protections, extending social safety nets to gig workers, and reducing power imbalances. By addressing these issues, society can work towards reducing inequality and promoting fairer conditions for gig workers.

While the reasons for placing gig workers as dependent contractors with limited or no rights can be complex, what can be done? How can we address these issues and work towards solutions that provide greater protections and benefits for gig workers? In an attempt to address these questions, it becomes arguable that there is a need to determine the degree of autonomy, subordination, dependency, and control over gig work, which can be complex. First, examining the level of control exerted by the platform over gig workers can indicate their degree of autonomy. Setting prices, choosing working hours, selecting tasks, and operating independently can demonstrate higher autonomy. Conversely, heavy control and supervision from the platform can suggest greater subordination. Secondly, assessing the extent to which gig workers can choose their clients, decline or accept tasks, and work for multiple platforms can provide insights into their level of independence and control. Greater flexibility and choice typically indicate higher autonomy.

Furthermore, evaluating the economic dependency of gig workers on a particular platform or gig work in general is crucial. Factors such as the proportion of income derived from gig work, availability of alternative income sources, and financial stability can determine the level of dependency. Another factor is integration and exclusivity. Analysing whether gig workers are integrated into the platform’s operations or work exclusively for a single platform can indicate their level of subordination and control. Higher integration and exclusivity may suggest a greater degree of control by the platform.

Assessing the level of tools, training, and support the platform provides can indicate how much gig workers rely on it. Higher levels of platform-provided resources and training may suggest greater subordination and control. Reviewing the terms and conditions of the contractual agreements between gig workers and platforms can provide insights into the power dynamics and the degree of control exercised by the platforms.

It is important to note that the specific indicators and criteria used may vary across jurisdictions and legal frameworks. Assessing the totality of the circumstances and considering various factors can help determine the appropriate legal (re)classification and protection for gig workers.

3. Analysing the status of gig workers through case law and legislative measures

Over the last few years (augmented by the COVID-19 impact), various courts consistently ruled in favour of gig workers being classified as employees. The case law has been centred on platforms arguing that the workers were self-employed, while the gig workers contended that they should be classified as employees. It is worth noting that the legal landscape can vary significantly between countries and even within different regions or states, and court decisions and legislative actions may continue to shape the extent of platform liability for gig workers (Hießl, 2022). Some case law and legislative measures are discussed in turn.

In 2016, the Paris Court of Appeals ruled that couriers working for Take Eat Easy, a food delivery platform, were considered employees rather than independent contractors. The court emphasized the existence of a hierarchical relationship and the dependency of the couriers on the platform, leading to the recognition of their employment status and entitlement to social protections (Defossez, 2022; Hießl, 2022). In 2020, the French Court of Cassation, the highest court in France, confirmed a previous ruling that Uber drivers should be classified as employees (Uber France SAS v. Guillaume Rousseau). The court considered factors such as the control exercised by Uber over drivers, their integration into the company’s organization, and the absence of genuine independence in their activity. This decision affirmed Uber drivers’ entitlement to social protection (Uber France SAS v. Guillaume Rousseau).

In France, a new law was passed in 2021 that gives gig workers the right to unionize and negotiate with platforms over their working conditions (Country Report, 2022). The law also requires platforms to provide workers with specific information about how their work is evaluated and compensated (Country Report, 2022). This new law is called ‘Loi pour une croissance de l’activité, l’égalité des chances et la participation citoyenne’ or in English, ‘Law for the growth of activity, equality of opportunities and civic participation’ (Country Report, 2022). It is also known as the ‘PACTE Law’.

In addition, in 2021, the French Court of Cassation ruled that Deliveroo riders could form a union (Deliveroo SAS v. Independent Workers’ Union (France)). The court emphasized the subordination of the riders to Deliveroo’s management, the control exerted by the platform, and the riders’ integration into the company’s organization, leading to the recognition of their employment status and the right to unionize (Deliveroo SAS v. Independent Workers’ Union (France)).

In 2021, the UK’s Independent Workers’ Union of Great Britain (IWGB) won a case against Deliveroo, a food delivery platform (Roofoods Ltd v Riders & Couriers Union). The court ruled that Deliveroo couriers were entitled to collective bargaining rights, opening the door for gig workers to negotiate better pay and conditions through unions. In 2019, the Ontario Labour Relations Board (OLRB) recognized Foodora couriers in Toronto as dependent contractors (Canadian Union of Postal Workers v Foodora Inc). This decision allowed the couriers to unionize and bargain collectively, allowing them to advocate for improved working conditions and access to social benefits.

In this regard, the right to organize and bargain collectively is essential for negotiating fair wages and employment conditions, safeguarding workers’ rights, and addressing the power imbalance between gig workers and their employers (Johnston & Land-Kazlauskas, 2019). In light of the unique challenges gig workers face, regulatory strategies should consider the low trade union density levels. It critically impacts the power dynamics between employers and gig workers at both individual and collective levels, posing a risk of deteriorating employment conditions and job quality. It is vital to ensure that gig workers can organize and engage in collective bargaining to protect their rights, negotiate potential redundancies, and address the implications of new technologies on job quality following automation. There is a growing movement to classify gig workers as employees, entitling them to benefits such as sick leave, minimum wage, and social security.

In the United States, California, Assembly Bill 5 (AB5) was passed in 2019, which codified a new test for determining whether a worker is an independent contractor or an employee (Rhinehart et al., 2016). This test, known as the ‘ABC’ test, makes it more difficult for companies to classify workers as independent contractors (Rhinehart et al., 2016). In addition, some states have passed legislation that requires gig economy companies to provide workers with certain benefits, such as sick leave and unemployment insurance (Rhinehart et al., 2016).

The UK Supreme Court 2021 (Uber BV & Others v Aslam) ruled that Uber drivers were workers and not self-employed, entitling them to minimum wage, holiday pay, and pension contributions (Adams-Prassl et al., 2020). Uber was arguing that the drivers were self-employed, and the drivers were arguing that they were workers. The court found that Uber exercised significant control over its drivers, such as setting fares, allocating trips, monitoring performance, and imposing penalties (Adams-Prassl et al., 2020). The ruling affected about 70,000 Uber drivers in the UK and could have implications for other platform workers in similar situations. This court ruling came at the back end of The UK government’s passing of the Good Work Plan in 2018, which introduced various measures to improve gig workers’ rights (Adams-Prassl et al., 2020). These included the right to a written statement of terms and conditions, requesting more predictable working hours, and taking on multiple jobs (Adams-Prassl et al., 2020).

In 2020, France’s highest court ruled that an Uber driver was an employee and not an independent contractor, setting a precedent for other platform workers to claim employee status and rights. The court argued that the driver was not free to choose his customers, set his prices, or determine the terms and conditions of his service but depended on Uber’s rules and algorithms. The ruling opened the door for other platform workers to sue for reclassification and compensation (Reis & Chand, 2020).

In 2021, Spain enacted the so-called Riders Law, which required food delivery services such as Uber Eats and Deliveroo to reclassify their workers as employees, covering an estimated 30,000 workers (Business-Human Rights.org, 2021). The law also granted them the right to collective bargaining, access to social security benefits, and protection against unfair dismissal. The law followed a series of court rulings that found platform workers were not self-employed but had a labor relationship with the platforms (Business-Human Rights.org, 2021). In addition, Spain passed the Royal Decree-Law 9/2021 in March 2021, which requires companies in the gig economy to classify their workers as employees unless they can prove that the workers are truly independent contractors (McCulloch, 2021). The law also requires companies to provide workers with minimum social security coverage (McCulloch, 2021).

In 2021, a California court ruled that ride-hailing drivers are eligible for unemployment benefits, stating that they should be considered employees rather than independent contractors (People v. Uber Technologies, Inc). This decision recognized the need to provide social protections, including unemployment benefits, to gig workers. The Ontario Labour Relations Board (OLRB) ruled that Foodora couriers in Toronto were considered employees under the Ontario Labour Relations Act (Canadian Union of Postal Workers v. Foodora). This decision allowed the couriers to unionize and access various employment benefits and protections.

With these cases, it is submitted that it is crucial to reaffirm that labour is not a commodity and prioritize protecting human rights within a human-centered agenda for platform work. By embracing this principle and taking concrete actions, it is possible to strengthen gig workers’ collective rights and ensure their fair representation and protection within the evolving world of work. Recognizing the difficulties workers’ representatives face and organized labour, the Global Commission on the Future of Work emphasizes the need to revitalize collective representation. Regulatory frameworks should be re-evaluated. Barriers hindering effective organization and representation of gig workers must be dismantled to promote freedom of association and organize and represent their collective interests (Working time and work-life balance around the world. (2022)).

Implementing voluntary measures or agreements by platforms to provide benefits or protections to their workers is arguably an affirmation of platform liability towards extensions of social protection to gig workers. Several platforms have introduced voluntary measures or agreements to provide benefits or protection to their gig workers during the height of the pandemic. In the UK, Uber introduced a new policy that provides drivers with benefits such as minimum wage, holiday pay, and pensions (De Stefano et al, 2021). In addition, Uber implemented safety measures such as masks and sanitizing products for drivers and riders (De Stefano et al, 2021). Deliveroo introduced a rider support package in the UK that includes insurance coverage for accidents and injuries and a fund to support riders diagnosed with COVID-19.

Instacart has implemented several safety measures for its workers during the COVID-19 pandemic, such as providing masks and gloves and offering sick pay for workers diagnosed with COVID-19 (Jones, 2020). Postmates introduced a fund to support its workers diagnosed with COVID-19 and provide personal protective equipment and contactless delivery options (postmates.com).

These are just a few examples of platforms that have implemented voluntary measures or agreements to provide benefits or protections to their gig workers. The specific benefits and protections provided can vary by platform and by jurisdiction. The voluntary measures introduced by platforms to provide benefits or protections to their gig workers can provide some insights into the status of these workers. By offering benefits such as minimum wage, holiday pay, and insurance coverage, platforms implicitly recognize that their gig workers have needs and interests not currently being met through their status as independent contractors.

From the cases discussed above, the landscape of gig economy worker classification is undergoing a profound transformation, as evidenced by a series of pivotal legal cases and legislative reforms. This transformative journey is rooted in a compelling movement toward acknowledging gig workers as individuals reliant on platforms for employment, necessitating expanding social protections. Across the discussed jurisdictions, courts have meticulously examined intricate factors such as control dynamics, levels of subordination, and the extent of integration into platform operations to determine the true nature of the employment relationship.

In these rulings, we witness a seismic shift in the status of gig workers as they ascend from the fringes of self-employment to secure the recognition they deserve as bona fide employees. The implications of these landmark decisions resonate powerfully, conferring upon gig workers an array of social benefits and employment safeguards traditionally within the purview of full-fledged employee status.

It is submitted that the convergence of case law and legislative action represents a compelling necessity in the evolution of labour law, poised to respond to the paradigmatic evolution of work deftly. As the gig economy redefines traditional notions of employment, a critical demand emerges for regulatory frameworks that bridge emerging gaps and address novel challenges. The imperative for extension arises from multiple dimensions.

The court rulings and the new legislative measures bring to the fore the importance of clarifying and harmonizing the legal status of gig workers across different jurisdictions and platforms. This is imperative for several reasons, which include:

• Worker Protection: Gig workers often face uncertainty and limited protection due to their ambiguous legal status (Cohen et al., 2023). Clarifying their legal status ensures they are entitled to appropriate labour protections, such as minimum wage, social security benefits, and workplace safety regulations. It helps prevent exploitation and ensures fair treatment.

• Employment Benefits: Gig workers are typically classified as independent contractors, which means they are not entitled to benefits commonly provided to employees, such as health insurance, paid leave, and retirement plans. By clarifying their legal status, jurisdictions can determine whether gig workers should be eligible for these benefits, ensuring fair and adequate compensation (Johnston & Land-Kazlauskas, 2019).

• Labour Rights: Clear legal status empowers gig workers to exercise their labour rights effectively. It allows them to organize and bargain collectively for better pay, working conditions, and other employment terms (Cohen et al., 2023). It also facilitates access to dispute resolution mechanisms, allowing gig workers to address grievances and resolve conflicts with platform operators.

Primarily, the extension of social protections to gig workers emerges as a formidable bulwark in fortifying the fundamental rights of this workforce segment. This encompasses essential entitlements such as access to healthcare, retirement benefits, and unemployment insurance. The transformation of labor laws becomes an ethical obligation that stands as a vanguard for safeguarding the rights and dignities of gig workers and fostering a work environment characterized by equity and support.

Furthermore, adapting labour laws to the evolving contours of modern work is quintessential. It is arguable that conventional labour laws, meticulously designed for the contours of traditional employer-employee relations, are being stretched to their limits as the gig economy ushers in uncharted dimensions of work such as flexitime, remote engagement, and platform-based work. Tailoring these laws to these new paradigms is an inexorable demand, ensconcing protection mechanisms and social benefits that resonate seamlessly with the idiosyncratic requirements of gig workers.

Concurrently, a poignant emphasis on addressing the pervasive power imbalance faced by gig workers necessitates the extension of social protections. Often bereft of the collective bargaining power enjoyed by their traditionally employed counterparts, gig workers frequently find themselves on an uneven terrain devoid of legal defenses. The infusion of social protections thus serves as an endeavor to endow gig workers with the rights and opportunities they deserve. Moreover, social protection’s extensibility can mitigate inequality and erode the precariousness associated with the gig economy. By erecting a robust safety net, policymakers can ameliorate the volatility intrinsic to gig work, nurturing an environment conducive to equitability and inclusion within the labor market.

A technologically dynamic world necessitates the recalibration of labor laws to be synchronous with swift advancements (Bates et al., 2021). The blistering pace at which the gig economy advances necessitates a nimble and responsive regulatory framework. By perpetually updating labour laws, we safeguard workers’ rights and engender an environment that envelops gig workers, irrespective of their diverse employment engagements, with unequivocal protection (Bates et al., 2021). The critical juncture at which we stand is characterized by an unambiguous call to tailor social protections to gig workers’ unique challenges and aspirations. Inextricably linked with the broader aspiration of ensuring a work environment predicated on justice and respect, this extension of protection ensures that labour laws mirror the realities of the contemporary workforce.

Furthermore, the paper argues that an intrinsic alignment between the extension of social protection and the Universal Development Goals (ILO, 2019) becomes discernible. Emblematic of this connection is Goal 8: Decent Work and Economic Growth, which envisions a world wherein work is distinguished by its fairness and sustenance (ILO, 2019). By conferring fair working conditions, access to social benefits, and a sense of income security, the extension aligns harmoniously with this goal, fostering robust and sustainable enterprises while cultivating economic stability (ILO, 2019). Equally resonant is the alignment with Goal 10: Reduced Inequalities. As gig workers grapple with tenuous work conditions and limited access to social protections, disparities are perpetuated. The extension of protection serves as a ‘balm,’ obliterating inequalities and shoring up the walls of equal opportunity for workers engaged in diverse modes of employment.

Beyond these, the interconnectedness of social protection with various Universal Development Goals comes into sharper focus (ILO, 2019). Goal 1: No Poverty is fortified by these protections, preventing gig workers from spiralling into destitution during financial strain. Goal 3: Good Health and Well-being are buttressed by ensuring these workers have access to healthcare services (ILO, 2019). Meanwhile, the extension encompasses the ambitions of Goal 5: Gender Equality by catering to the unique needs of working women through provisions like maternity leave and childcare assistance (ILO, 2019). Lastly, the resonance with Goal 16: Peace, Justice, and Strong Institutions is unmistakable as legal protections and a fair grievance resolution mechanism weave an indomitable tapestry of justice and institutional strength (ILO, 2019).

Therefore, it is submitted that the extension of social protection emerges as an intrinsic demand borne of the evolving nature of work and the exigencies of justice. Its resonance with the Universal Development Goals further cements its profound significance as a conduit for equity, inclusivity, and well-being. As societies traverse the terrain of the modern workforce, a robust commitment to extending social protections stands as a beacon of progress, guiding us toward a labor landscape characterized by fairness, dignity, and an unwavering commitment to the well-being of all workers, irrespective of their employment arrangements.

From those above, the paper suggests some recommendations for extending social protection to gig workers globally: a) Labor laws should be designed to provide a flexible structure that allows for various options for employee organization, safety net protections, and corporate competitiveness. This flexibility can accommodate the diverse needs of gig workers while ensuring their rights and protections. Secondly, intermediary entities, such as agents, labor brokers, Managed Service Providers (MSPs), or associations, should be acknowledged and integrated into the labor framework. These entities play a crucial role in facilitating work arrangements for gig workers and can contribute to their social protection.

Thirdly, the dividing line between illegal employer domination of unions and new forms of effective employee groupings should be re-examined. This is particularly important considering technological advancements and the globalization of labour markets facilitated by the Internet. Fourth, contradictions between judicial rulings and state policies regarding classifying workers as independent contractors or employees must be resolved. This resolution should ensure that workers are not deprived of essential protections by circumventing employer obligations.

Fifth, the sharp divisions between the union and non-union representation may be less relevant in the current labor relations landscape. Alternative structures for worker representation, including non-union intermediaries, should be explored and supported if they add value to gig workers. Sixth, different approaches to advancing workers’ interests must be explored and developed, including formal and informal representation through intermediaries. These approaches should address gig workers’ unique challenges in rapidly evolving global economies. Lastly, the government administration, such as President Joe Biden, should actively advance social protection for gig workers. This engagement is crucial for addressing the needs of gig workers and ensuring fair treatment in the labor market.

However, these aspirations cannot be achieved in isolation. A holistic approach is essential, as encapsulated in the ILO Global Commission on the Future of Work’s assertion: ‘Countless opportunities lie ahead to improve the quality of working lives, expand choice, close the gender gap, reverse the damages wreaked by global inequality. However, none of this will happen by itself.’ (ILO, 2019). The time for action is now. As the digital era propels us into uncharted territory, the call for equitable social protections for gig workers resonates as a defining moment. The lessons gleaned from legal cases and legislative measures worldwide must guide us toward a future of work characterized by fairness, respect, and empowerment.

To achieve this, a synergy of efforts is imperative. Governments must take decisive legislative action, recognizing that gig workers are central to the modern economy. Platforms must embrace their role as facilitators of change, adopting practices that align with principles of fairness and inclusivity. Civil society, too, must raise its voice to amplify the call for systemic reform. The tapestry of the modern workforce is intricately woven with the threads of gig workers’ contributions.

4. Recommendations to consider

As the gig economy continues to evolve, discussions around platform liability are likely to persist. The balance between ensuring worker protection and maintaining the flexibility and efficiency of online platforms remains a complex and contentious issue that requires careful consideration of all stakeholders’ interests. The paper suggests the following recommendations:

1. Ensuring Platform Worker Welfare. Establishing robust mechanisms to address grievances and misconduct within gig platforms is imperative. Mandatory training programs should be implemented to educate platform workers about their labor rights and the platform’s anti-harassment policies. These initiatives aim to empower workers and promote a safer and more equitable work environment.

2. Research and Evidence-Based Policy: There is a pressing need for more empirical research to inform policy decisions and actions regarding gig work. Comprehensive studies are essential to understand the role of gig work in the broader labor market and identify effective strategies and platforms adopted worldwide. This evidence-based approach will enable policymakers to implement high-impact measures that address the challenges faced by gig workers.

3. Ensuring Labor and Social Protections: While gig work offers flexibility and financial independence, it presents significant challenges, such as limited social safety and bargaining power access. Policymakers and platform owners must prioritize the provision of adequate labor and social protections for gig workers. Fundamental rights such as freedom of association and collective bargaining should be upheld to empower workers and promote fair labor practices.

4. Gradual Legal Reform for Employee Classification: Governments should explore classifying gig workers as employees to ensure they receive appropriate benefits and protections. While a blanket classification may be controversial, incremental reforms can be considered. Feasibility studies should be conducted, and tripartite committees involving platform workers, companies, and government representatives should be established to assess the viability of such legal reforms.

5. Establishment of Specific Welfare Schemes: To address the unique needs of platform workers, governments should introduce dedicated welfare schemes tailored to their requirements. These schemes should offer reasonable insurance premiums and incentives to encourage participation. Governments can ensure that gig workers receive adequate support and protection by establishing separate schemes.

6. Regulation of Platform Companies: Governments must introduce laws to regulate platform companies and establish minimum standards for working conditions. These regulations should cover minimum pay, maximum working hours, and occupational safety and health. However, careful consideration and negotiation are necessary to avoid negatively impacting platforms’ financial viability and consumers.

7. Promoting Freedom of Association and Collective Bargaining: To enhance the bargaining power of gig workers, governments should encourage freedom of association and collective bargaining and ratify international conventions such as ILO Convention Nos. 87 and 98 will enable workers to negotiate fair terms and conditions with platforms, regardless of employment classification. Collective bargaining is essential for safeguarding fundamental rights and ensuring fair treatment for all workers.

5. Conclusion

The digital age has ushered in a transformative era of work, challenging established norms, and demanding innovative solutions. At the forefront of this paradigm shift are gig workers who engage in short-term, flexible work arrangements facilitated by online platforms. As these platforms redefine the nature of work, courts and legislatures worldwide grapple with the crucial question of extending social protections to this dynamic and often vulnerable workforce.

A critical juncture has been reached, as evidenced by a series of landmark cases and legislative initiatives that have spotlighted the rights and entitlements of gig workers. The once-blurred lines between traditional employment and platform-based labour are being etched with increasing clarity. In France, for instance, a ruling by the highest court classified an Uber driver as an employee, affirming the need for social protections and benefits. Spain took a stride forward with the Riders Law, mandating food delivery platforms to reclassify workers as employees, signaling a global shift toward recognizing the shared responsibility of platforms and society.

As these legal developments unfold, an undeniable pattern emerges – the movement toward recognizing gig workers as more than mere contractors. Reclassifying these workers as employees underscores the necessity of extending social protections. Courts have analysed intricate dynamics, including the level of control exerted by platforms, the degree of worker integration, and the nature of the employment relationship. The implications of these decisions reverberate profoundly. Gig workers, once on the periphery of labour rights, are now gaining access to benefits such as collective bargaining, social security, and protection against unfair dismissal. A chorus of voices advocates for a fair and equitable playing field, reflecting the changing contours of the modern workforce.

Amidst these shifts, the task is to design a comprehensive framework that safeguards the rights and well-being of gig workers. While legal strides have been made, it is imperative to recognize that the terrain is still evolving. The diversity of global legal frameworks reflects the nuanced nature of the issue. However, the underlying principle remains consistent: a call for transformative measures to provide gig workers with the protections they deserve. This transformation extends beyond the courtroom; it requires the collective effort of governments, platforms, and civil society to bridge the gap between traditional labor norms and the evolving world of work. It is time to pivot from mere acknowledgment to systemic change.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

The work was supported by the Govan Mbeki Research and Development Center, University of Fort Hare and Rhodes University.

Notes on contributors

Luyando Martha Katiyatiya

Dr Luyando Martha Katiyatiya lectures on Commercial Law and Labour Law at Rhodes University. She is also a practicing Advocate of the High Courts of South Africa, holding membership with the South African Bar Association. Her research interests are labour law from a workplace for the future and the fourth industrial revolution perspective.

Nombulelelo Lubisi

Dr Nombulelelo Lubisi holds a B Juris, LLB, LLM and LLD (UFH), Advanced Labour Law (UNISA), and various other certificates covering several competencies, such as Project Management, Financial Management, Leadership skills, Socio-economic Rights, Development and Human Rights, Assessment and Moderation, etc. She was admitted to practice as an advocate in 2005 and is currently working at Nelson R Mandela School of Law at the University of Fort Hare.