10.6092/issn.1561-8048/15221
The contribution provides a comparison between the regulatory solutions of the ABC-Test in the US and of the EU Directive Proposal on platform work. The Authors underline the significant differences between the two models at stake, despite the common recourse to the rebuttable presumption of employment subordination technique.
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Comparison
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The Rebuttable Presumption of Employment Subordination in the US ABC-Test and in the EU Platform Work Directive Proposal: A Comparative Overview
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The Rebuttable Presumption of Employment Subordination in the US                      Italian Labour Law e-Journal
ABC-Test and in the EU Platform Work Directive Proposal: A                                   Issue 1, Vol. 15 (2022)
Comparative Overview                                                                               ISSN 1561-8048
William B. Gould IV                                                 https://doi.org/10.6092/issn.1561-8048/15221
Marco Biasi
wbgould@stanford.edu
marco.biasi@unimi.it




         The Rebuttable Presumption of Employment
       Subordination in the US ABC-Test and in the EU
             Platform Work Directive Proposal:
                  A Comparative Overview
                         William B. Gould IV* and Marco Biasi**

 1. Introduction. 2. The ABC-Test in the US. 3. The rebuttable presumption of employment
 subordination in the EU Platform Work Directive Proposal. 4. Concluding Remarks.



                                                   Abstract

     The contribution provides a comparison between the regulatory solutions of the ABC-Test in
     the US and of the EU Directive Proposal on platform work. The Authors underline the
     significant differences between the two models at stake, despite the common recourse to the
     rebuttable presumption of employment subordination technique.

     Keyword: Platform work; Rebuttable presumption of employment subordination; Prop 22; EU
     Directive Proposal; Comparison; ABC test.



 1. Introduction.

    Despite the progressive extension of labor protection towards self-employment, it is hard
 to deny that employment subordination is still the access gate to the bulk of labor
 protections.1
    Even when it comes to platform workers, a preliminary concern is thus to ascertain
 whether they are (or ought to be) classified as either employees or self-employed workers.2


 * Professor of Labour Law, Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law, USA. Much of
 the content of par. 2, which is attributable to Prof. William B. Gould IV, is based upon W.B. Gould IV, For
 Labor to Build Upon: Wars, Depression and Pandemic, Cambridge University Press, Cambridge, 2022.
 ** Associate Professor in Labour Law at the University of Milan, Italy. The contribution was drafted during the

 period Prof. Marco Biasi spent as Visiting Scholar at the Law School of Stanford University (March 2022 –
 June 2022), under the auspices of the State-funded project “WORKING POOR N.E.E.D.S.: NEw Equity,
 Decent work and Skills” (CUP G24I19002630001). This essay has been submitted to a double-blind peer
 review.
 1 Davidov G., Freedland, M., Kountouris, N., The Subjects of Labor Law: “Employees” and other Workers, in Finkin

 M.W., Mundlak G. (eds.), Comparative Labor Law, Research Handbooks in Comparative Law, Edward Elgar, 2015,
 115 ff.
 2 Dau-Schmidt K.G., The Impact of Emerging Information Technologies on the Employment Relationship: New Gigs for

 Labor and Employment Law, in The University of Chicago Legal Forum, 2017, 63 ff.; Delfino, M., Work in the Age of
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                                                                                                         Section: Theme




   Although labor law scholars gave account of a “tendential acknowledgement of the
subordinate nature of the employment relationship”,3 the classification of platform workers
remains a “dilemma” in every jurisdiction.4 In fact, the epilogue of any dispute in matter is
not easily predictable (like in any other classification case), as there have been a significant
number of cases where platform workers were not classified as employees.5
   It is interesting to note that, when platform workers did not qualify for the employment
status, the Courts often called on the legislator to fill the regulatory gap and to provide
workers with a basic protection regardless of their legal classification as employees.6
   Not by chance, in many jurisdictions the focus has ultimately started to shift from legal
classification to labor protection(s), in furtherance of a holistic tension which inspired also
the ILO’s Decent Work Agenda of 1999 and other subsequent initiatives launched at both
the international level7 and at European level.8
   Still, the avenues of a universal approach to labor protections may vary considerably.



Collaborative Platforms Between Innovation and Tradition, in European Labour Law Journal, 9, 4, 2018, 346 ff.; Prassl J.,
Humans as a Service. The Promise and Perils of Work in the Gig Economy, Oxford University Press, Oxford, 2018.
3 Carinci M.T., Dorssemont F., Platform Work in Europe. A Comparative Perspective, in Carinci, M.T., Dorssemont,

F. (eds.), Platform Work in Europe. Towards Harmonization?, Intersentia, 2021, 230, weighting in on the
classification cases in Europe; compare the extensive analysis by Hießl C., Case Law on the Classification of Platform
Workers:         Cross-European        Comparative         Analysis        and       Tentative       Conclusions,     in
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3839603, 13 December 2021.
4Keeton R.B., An Uber Dilemma: The Conflict Between the Seattle Rideshare Ordinance, the NLRA, and For-Hire Driver

Worker Classification, in Gonzaga Law Review, 42, 2017, 207 ff.; Dau-Schmid K.G., The Problem of “Misclassification”
or How to Define Who is an “Employee” Under Protective Legislation in the Information Age, in Bales R., Garden C. (eds.),
The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century, 2019, https://ssrn.com/abstract=3143296).
As observed by Justice Vince Chhabria in Cotter v. Lyft, Inc., 176 F. Supp. 3d 930 (N.D. Cal. 2016), while
discerning whether Lyft drivers are employees or independent contractors the jury is “handed a square peg and
asked to choose between two round holes”.
5 Compare Rosin A., Towards a European Employment Status: The EU Proposal for a Directive on Improving Working

Conditions in Platform Work, in Industrial Law Journal., 51, 2, June 2022, maintaining that Courts tend to be more
willing to classify as employees those performing on-location platform work (especially taxi drivers and food
couriers) rather than those in exclusive online platform work.
6In the words of the Tribunal of Amsterdam (Trib. Amsterdam, 23 July 2018, Sytze Ferwerda v. Deliveroo), “if

the independent work contracts like those arranged by Deliveroo were considered socially undesirable by the
legislator, the latter should intervene with a new regulation in matter”; compare Australian Fair Work
Commission, 21 December 2017, Kaseris v Rasier Pacific: “Perhaps the law of employment will evolve to catch
pace with the evolving nature of the digital economy. Perhaps the legislature will develop laws to refine
traditional notions of employment or broaden protection to participants in the digital economy. But until then,
the traditional available tests of employment will continue to be applied”; see also Trib. Torino 7 maggio 2018,
holding that the “complex issues of the gig economy” could be neither addressed nor solved in a single
classification case.
7 ILO DG Report 87th Session ILC 1999; Declaration on Fundamental Principles and Rights at Work del 1998:

Sen A., Work and rights, in International Labour Review, 139, 2000, 119 ff.; Hepple B., Equality and Empowerment for
Decent Work, in International Labor Review, 140, 1, 2001, 5 ff.; as stated in the ILO, Report IV – ILO Centenary
Outcome Document, 2019, “All workers, regardless of their employment status or contractual arrangements,
should be guaranteed respect for their fundamental rights”.
8 See Principle 5 of the European Pillar of Social Rights of 2017: “Regardless of the type and duration of the

employment relationship, workers have the right to fair and equal treatment regarding working conditions,
access to social protection and training”: Garben S., The European Pillar of Social Rights: Effectively Addressing
Displacement?, in European Constitutional Law Review, 14, 1, 2018, 210 ff.

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    As elsewhere claimed,9 policy makers may choose among – or potentially combine: see
infra, par. 3. – three main techniques of protection:
    a) the assimilation, which occurs when self-employed workers are treated as if they were
employees or when they are presumed to be employees (unless otherwise proven);
    b) the isolation of a sub-category within the area of self-employment or the introduction
of an intermediate category between employment and self-employment, with the aim of
conferring upon this class of workers a set of special rights which do not entirely replicate
the full employment standards;
    c) the creation and/or the promotion of collective bargaining mechanisms for non-
employees.
    The aim of this contribution is to compare two solutions – the US ABC-Test (par. 2) and
the EU Platform Work Directive Proposal (par. 3) – which come under the technique a) of
the above-mentioned scheme, as they are both based on a rebuttable presumption
mechanism.
    Yet, the analysis will show that, despite the common recourse to the rebuttable
presumption of employment subordination technique, the two solutions vary significantly in
their scope of application and in their operating mechanism, as a consequence of a very
different – indeed, almost opposite – approach of the relevant policy makers towards labor
law and social security protections in general (par. 4).


2. The ABC-Test in the US.

   Just as the ridesharing cases were coming to court and obtaining their first test with the
companies unsuccessfully claiming their drivers were independent contractors,10 the
Supreme Court of California in Dynamex Operations West, Incorporated v. Superior Court of Los
Angeles County held that the relatively convoluted and litigation producing common law test
for resolving such issues should be replaced by a relatively simple ABC test in California.11
Said the Court:

     A number of jurisdictions have adopted a simpler, more structured test for
     distinguishing between employees and independent contractors – the so-called “ABC”
     test – that minimizes these disadvantages.
     The ABC test presumptively considers all workers to be employees, and permits
     workers to be classified as independent contractors only if the hiring business
     demonstrates that the worker in question satisfies each of three conditions: (a) that the


9 Biasi M., Beyond Employment: the Protection of Platform Workers in a Holistic Perspective, in Lo Faro A. (ed.), New
Technology and Labour Law. Selected Topics, Giappichelli, 2022, forthcoming.
10 O’Connor v. Uber Techs, Inc., 82 F. Supp. 3d 1133 (N.D. Cal. 2015). The British Supreme Court similarly found

control in characterizing Uber drivers as workers within the meaning of minimum wage, statutory leave, and
vacation and holiday pay. Uber BV v. Aslam, (United Kingdom Supreme Court, Feb. 19, 2021); Editorial, Uber
Judgment is Set to Reshape the Gig Economy, in Financial Times, Feb. 22, 2021, at 16.
11 Dynamex v. Superior Court, 416 P.3d 1 (Cal. 2018).



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    worker is free from the control and direction of the hirer in connection with the
    performance of the work, both under the contract for the performance of the work
    and in fact; and (b) that the worker performs work that is outside the usual course of
    the hiring entity’s business; and (c) that the worker is customarily engaged in an
    independently established trade, occupation, or business of the same nature as that
    involved in the work performed.12

   The Court reasoned, in part, that the ABC test was more appropriate for two principal
reasons: (1) the role that misclassification was playing in increasing inequality in our society;
and (2) the fact that the public treasury was denied taxes that would be collected for the
collective good of society by the increase of independent contractor workers.13
   With regard to the first Dynamex consideration, the Court said:

     [T]the risk that workers who should be treated as employees may be improperly
    misclassified as independent contractors is significant in light of the potentially
    substantial economic incentives that a business may have in mischaracterizing some
    workers as independent contractors. Such incentives include the unfair competitive
    advantage the business may obtain over competitors that properly classify similar
    workers as employees and that thereby assume the fiscal and other responsibilities and
    burdens that an employer owes to its employees. In recent years, the relevant regulatory
    agencies of both the federal and state governments have declared that the
    misclassification of workers as independent contractors rather than employees is a very
    serious problem, depriving federal and state governments of billions of dollars in tax
    revenue and millions of workers of the labor law protections to which they are
    entitled.14

    The California Supreme Court was unanimous in its conclusion and the Legislature soon
followed in its wake with the enactment of so-called AB 5 (enacted in 2019, effective January
1, 2020) which codified Dynamex in the sense that it resolved all doubts about the extension
of its rationale to not only wages and hours litigation involved in that case but also to the
benefits noted above like unemployment compensation, workers compensation, etc. In this
process, AB5 created exemptions, for the most part preserving independent contractor status
for workers who were professional or viewed to be self-sufficient as well as other areas which


12Ibid.at 34. See generally, Deknatel A., Hoff-Downing L., ABC on the Books and in the Courts: An Analysis of Recent
Independent Contractor and Misclassification Statutes, in University of Pennsylvania. Journal of Law and Social Change, 18,
2015, 53 (evaluating the many state jurisdictions have a place for a common law test with more simplified
standards, which allow for less evasion than the common law test that was substituted for NLRB v. Hearst, 322
U.S. 111 (1944); compare Roadway Package System, Inc 326NLRB842 (1998) (Chairman Gould concurring);
Dial A Mattress 326NLRB884 (1998) (Chairman Gould dissenting).
13 With regard to the latter, University of California scholars have concluded that if Uber and Lyft had “…had

treated workers as employees the two companies would have paid $413 million into the State’s Unemployment
Insurance Fund between 2014 and 2019”: Jacobs K., Reich M., What Should Uber and Lyft Owe to the State
Unemployment Insurance Fund?, UCB Institute For Research On Labor And Employment (IRLE) (May 2020).
14 Dynamex, 416 P.3d 1.



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were viewed to be idiosyncratic – and more exemptions in subsequent legislation enacted
later in 2020.15 The exemptions have produced litigation, most prominently in connection
with the exemption for freelance journalists, the Court of Appeals for the Ninth Circuit
concluding that the regulation of them does not violate the First Amendment to the U.S.
Constitution.16 In another ruling, however, the district court concluded that the coverage of
truckers by AB 5 was unconstitutional inasmuch as it was preempted by the Federal Aviation
Administration Authorization Act of 1994 which, as part of the deregulation policy of the
federal government, prohibited states from enforcing any law relating to the price, route, or
service of a motor carrier on the grounds that it would interfere with Congressional
deregulation, an opinion reversed by the Ninth Circuit.17
    On the merits itself, not only has AB 5 applied the ABC test to unemployment
compensation, but also two cases have emerged in connection with other states’ enforcement
of unemployment compensation statutes involving eligibility for gig workers, the Court of
Appeals of New York (New York’s highest court) and the Supreme Court of Pennsylvania
holding that drivers are eligible.18 As the New York court said: “Although the Unemployment
Insurance Law was passed decades before the digital age, today’s app-enabled gig worker is
subject to the same devastating financial ‘insecurity’ faced by prior generations of
unemployed wage earners and which initially motivated legislators to act”.19
    But because states like California and other states did not immediately require the
companies to adhere to AB5’s ABC standards, enormous confusion arose when special
pandemic unemployment compensation was made available to independent contractors as
well as employees, the states acceding to positions of companies like Uber and Lyft and
categorizing such workers as independent contractors even though as a matter of state law
they were employees. This had the effect of creating enormous confusion because gig
workers calculated their earnings without deductions for expenses for which they cannot get
reimbursed as independent contractors.
    Again, Dynamex, cited favorably by the New York Court of Appeals, and AB 5 influenced
the lawmaking in jurisdictions like Massachusetts, New Jersey, and Connecticut, adopting the
“ABC Test” which is weighted in favor of a presumption of employee status. Although a
few jurisdictions hardly represent unanimity throughout all 50 States and, needless to say,

15 These exempt occupations would include, among others, licensed insurance agents, certain licensed health
care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real
estate licensees, commercial fishermen, workers providing licensed barber or cosmetology services, and others
performing work under a contract for professional services, with another business entity, or pursuant to a
subcontract in the construction industry.
16American Society of Journalists and Authors, Inc. v. Bonta, No. 20-55734 (9th Cir. Oct. 6, 2021).
17Cal. Trucking Ass’n v. Becerra, 433 F.Supp.3d 1154 (S.D. Cal. 2020), rev’d sub nom. Cal. Trucking Ass’n v. Bonta,

996 F.3d 644 (9th Cir. 2021). Cf. the Court of Appeals’ decision, Am. Trucking Ass’n, Inc. v. City of Los Angeles,
559 F.3d 1046, 1051 (9th Cir. 2009); Schwann v. FedEx Ground Package System, Inc., 813 F.3d 429 (1st Cir. 2016);
Dilts v. Penske Logistics, LLC, 769 F.3d 637, 648 (9th Cir. 2014). Yet, the two mentioned Ninth Circuit Court
decisions were appealed to the US Supreme Court, which refused to hear both appeals.
18 In re Vega Postmates Inc., Commissioner of Labor, 35 N.Y.3d (2020) NY slip op. No. 02094 (Mar. 26, 2020);

Lowman v. Unemployment Comp. Bd. of Review, 235 A.3d 278 (Pa. 2020) LEXIS 3935, No. 41 EAP 2018 (July 24,
2020).
19 In re Vega, nt (18), slip op. at 18.



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California Law is not strictly biding on other States, the “Sunshine State” have long had an
outsized reputation in leading the Country.20
   The CARES Act enacted by Congress to provide both wide pandemic unemployment
assistance to supplement state unemployment compensation law, conceding the likelihood
that many jurisdictions would not provide such payment on the grounds that the
workers were independent contractors has specifically included unemployment
compensation to them on a federal level (though the administration and payment of these
monies has been slow and difficult to obtain).21
   Proposition 22 throws all drivers for delivery and ride hailing companies into the
independent contractor status category, meaning they could not enjoy the employee benefits
California provides. The argument was that this was necessary because employee status
would mean the elimination of the business model taking the form of increased labor costs
which would both diminish their business and require them to only employ 40 hour a week
drivers, displacing all of those workers who want to work for a relatively short period of
time. This hardly seems likely given the fact that the companies need to employ more drivers
during so-called “surge” periods when the demand is heavy and when rates are increased and
the company seeks to attract and encourage workers to cover these periods. Moreover,
Professor Michael Reich has pointed out that labor cost increases do not necessarily translate
into price increase in this industry given that “... companies can absorb a substantial
proportion of the cost increases through increased utilization of their drivers, through
reduction in trip times because of reduced traffic congestion, and through reductions in
driver turnover costs.” They also have ample opportunity to reduce their commissions (i.e.,
the fees they collect from each ride) which now average about 25%.22 As Professor Reich
has pointed out, while the ride hailing companies take 25% of the fare, local jurisdictions like
Los Angeles and San Francisco “...have already capped commission rates at 15% for
restaurant and meal delivery companies, including UberEats, GrubHub, and others...these
companies continue to be active in the business of meal delivery, despite the reduction of
commissions from 30 to 15%”.23 Further, a series of scholarly papers have weighed in on the
side of an exploitation conclusion24 though there has been some pushback by studies
financed by Uber.25




20  Conversely, a few States have taken steps to make it easier to conclude that workers are independent
contractors: for instance, Alabama and Georgia have new laws that are very beneficial to App-based
transportation and delivery companies. Conclusively, the US approach to worker classification is diverse.
21 Islam v. Cuomo, 475 F. Supp. 3d 144 (E.D. N.Y. 2020). Cf. Noam Scheiber, Uber and Lyft Drivers Win Ruling on

Jobless Benefits,” in New York Times, July 29, 2020, at B1 and 4.
22 Declaration of Michael Reich in support of the People’s Motion for Preliminary Injunction, People of the State

of California v. Uber Technologies (Aug. 6, 2020).
23 Ibid. at 20-21.
24 Parrott J.A., Reich M., A Minimum Compensation Standard for Seattle TNC Drivers, Report for the City of Seattle, The

New School Center For New York City Affairs, July 2020; Parrott J.A., Reich M., An Earnings Standard for New
York City’s App-based Drivers: Economic Analysis and Policy Assessment, Report for the New York City Taxi and Limousine
Commission, The New School Center For New York City Affairs, July 2018.
25 Hyman L., et al., Platform Driving in Seattle, Cornell University ILR School (July 6, 2020).



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    In Proposition 22 on the California ballot in 2020, the companies put forward an
argument for a so-called “third way”26 by proposing a series of benefits for the drivers,
notwithstanding their independent contractor status. This took the form of (1) what
purported to be more than the minimum wage but calculated on the basis of a limited amount
of time in which the drivers would be compensated, i.e., no compensation for so-called
“waiting time” for rides; (2) it provided for workers who are employed and average 25 hours
a week providing them with 100% employer contribution or 82% of the total insurance cost;
(3) insurance for on-the-job injuries providing for 66% of the average weekly earnings when
the driver cannot work for up to two years (workers compensation does not provide a time
limit); (4) reimbursement of expenses at about 50% of what employees are provided; (5)
drivers will not have unemployment compensation, sick pay (employees have three or up to
10 days in some cities), family leave, disability insurance, overtime pay, or employer
contributions to Social Security and Medicare.27
    The outcome of Proposition 22, providing an overwhelming victory at the ballot box for
the platform companies, is momentous. “While the victory may have led to soaring share
prices for Uber and Lyft, it is a loss not only for workers but also for good policymaking”.28
True, AB 5 and Dynamex retain their viability outside of ride hailing and driver delivery
sectors.29 But the fact of the matter is a substantial part of the statute’s impetus came from
abuses from companies like Uber and Lyft and this is why the Seattle ordinance which gave
rise to the above-referenced Ninth Circuit litigation, only covered ride hailing. Other
employers will be tempted to take the same route as these companies.30 Other companies
would like to have exemptions for themselves.31
    Meanwhile, there has been legislation and litigation aplenty in other American
jurisdictions. For instance, the Massachusetts Attorney General has sued Uber and Lyft for
failing to adhere to that state’s ABC standards, the companies thus far unsuccessful in an
attempt to submit this issue to ballot initiatives.32
    The New Jersey Supreme Court has held that a slightly more relaxed ABC test is
applicable to platform companies doing business in that state.33 And in the state of




26  Harris S.D., Krueger A.B., A Proposal for Modernizing Labor Laws for the Twenty-First Century Work: The
“Independent        Worker”,        Hamilton        Project     at      23       n.       31      (Dec.      2015),
http://www.hamiltonproject.org/assets/files/modernizing_labor_laws_for_twenty_first_century_work_krue
ger_harris.pdf .
27 One of the best surveys of proposition 22 was provided in Carolyn Said, What Measure Does for Driver, Gig

Companies, in San Francisco Chronicle, Oct. 19, 2020, at A1.
28 A California Setback for Gig Economy Workers, in Financial Times, Nov. 6, 2020, at 16.
29 Carolyn Said, AB5 Still Has Bit Despite Prop. 22, in San Francisco Chronicle, Nov. 10, 2020, at C1, C3. Compare

Editorial, Uber Has Taken Half a Step on Workers’ Rights, in Financial Times (London), Mar. 18, 2021, at 18.
30 Park J., Wiley H., Initiative Blew a Hole in Landmark Labor Law, in San Jose Mercury News, Nov. 15, 2020, at B1.
31 Gerstein T., What Happened in California is a Cautionary Tale, in New York Times, Nov. 16, 2020, at A23.
32 Koussa v. Attorney General, No. SJC-13237, 2022 WL 2128312, at *1-2 (Mass. June 14, 2022). Prior to this

litigation The Court of Appeals in the First Circuit had held the Massachusetts ABC test unconstitutionally
preempted. Schwann v. FedEx Ground Package Sys., Inc., 813 F.3d 429 (1st Cir. 2016).
33 Hargrove v. Sleepy’s, LLC, 106 A.3d 449 (2015).



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Washington, an approach close to that adopted in Proposition 22 which creates a third
classification distinct from employees and independent contractors has been adopted.34
     Beyond these judicial and legislative initiatives, there is a sprawl of different approaches,
i.e., classifying workers as either employees or independent contractors in a wide variety of
different jurisdictions throughout the 50 states.35 This fact, along with the promise of new
decisions by the Biden Board in the collective bargaining arena and policies not yet provided
on wage and hour legislation, promise policy disputation and litigation for a number of years
to come.


3. The rebuttable presumption of employment subordination in the EU Platform
Work Directive Proposal.

    Last 9 December 2021, the European Commission advanced a Proposal for a Directive
on improving working conditions in platform work.36
    The draft took into consideration the opinions of the social partners, which were deeply
involved in the draft of the proposal.37
    On the one hand, EU employer associations have displayed their skepticism on the
initiative and manifested their preference for a State-regulation of platform work.
    On the other hand, EU unions have been favorable to a European approach on platform
work and they have strongly supported the regulatory solutions advanced in the proposal
and, in particular, the rebuttable presumption of employment subordination, as an alternative
to the introduction of a third category between employment and self-employment.
    Yet, two preliminary aspects should be kept in mind for the purposes of a comparison
with the US ABC-test.
    At first, the EU proposal is far from being extant law and it is likely subject to
amendments and changes during its discussion at the EU Parliament and it might take a –
relatively – long time before the Directive is eventually approved.38
    Secondly, contrary to the ABC Test (at least, in the aftermath of Prop-22), the scope of
application of the EU proposal encapsulates the “persons performing platform work”39 and not
anyone who personally carries out a working activity.40

34    See https://news.bloomberglaw.com/daily-labor-report/lyft-uber-washington-drivers-get-benefits-no-
employee-status. See also Cherry M.A., Aloisi A., “Dependent Contractors” in the Gig Economy: A Comparative
Approach, in American University Law Review, 66, 3, 2017, 635, 688.
35 Cunningham-Parmeter K., From Amazon to Uber: Defining Employment in the Modern Economy, in Boston University

Law Review, 96, 2016, 1673, 1683-84, 1688.
36 EU Commission, Proposal for a Directive of the European Parliament and of the Council on improving

working conditions in platform work, 9 December 2021, COM (2021), 762 final.
37 Pisani F., La proposta di direttiva UE per i lavoratori delle piattaforme digitali e i Real Decreto-Ley 9/2021 spagnolo, in

Lavoro e Previdenza Oggi, 1-2, 2022, 66 ff.
38 Compare Alaimo A., Lavoro e piattaforme tra subordinazione e autonomia: la modulazione delle tutele nella proposta della

Commissione europea, in in Giornale di Diritto del Lavoro e di Relazioni Industriali, 2, 2022, 641 ff.
39 See the “Definition” under art. 2 of the EU Directive Proposal.
40 Yet, the meaning of platform work for the purposes of the directive is rather wide, as it comprises both on-

demand workers (such a Uber drivers) and crowd-workers (such as Amazon Turk workers). Compare Giubboni
S., La proposta di direttiva della Commissione europea sul lavoro tramite piattaforma digitale, in Menabò di Etica ed Economia,

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   Most importantly, the proposal addresses those who work for o through a platform as
employees (“platform workers” in a strict sense41) as well as those who carry out the same
working activity as independent contractors, whilst the conferral of “ad hoc” rights to self-
employed workers by Prop-22 was a radical alternative to the threat (or, better, the utmost
certainty) of the reclassification of platform workers as employees in application of the ABC-
Test.
   According to the early version of the proposal, the presumption of employment
subordination would be triggered by the fulfillment of at least two of the following five
indicators, which is upon the claimant to prove:42
   (a) the platform effectively determines or sets upper limits for the level of remuneration;
   (b) the platform requires the person performing platform work to respect specific binding
rules with regard to appearance, conduct towards the recipient of the service or performance
of the work;
   (c) the platform supervises the performance of work or verifying the quality of the results
of the work including by electronic means;
   (d) the platform effectively restricts the freedom, including through sanctions, to organize
one’s work, in particular the discretion to choose one’s working hours or periods of absence,
to accept or to refuse tasks or to use subcontractors or substitutes;
   (e) the platform effectively restricts the possibility to build a client base or to perform
work for any third party.
   Pursuant to article 4 of the Proposal, Member States should ensure the possibility for any
of the parties (and especially for the platform) to rebut the legal presumption, even if all five
indicators were met.43
   As noted by many scholars, the mentioned indicators are extremely heterogenous.44
   The indicators sub a), sub b) and sub e), are typical features of on-demand work,45 but
they can be compatible with a genuine self-employment relationship.
   On the contrary, the circumstances sub c) and sub d) mirror two “classic” indicia of
employment subordination, considering how they refer to the exercise of the “control” by
the platform.46

164, 16th January 2022, 1; Capponi, F., Lavoro mediante piattaforma digitale e qualificazione del rapporto di lavoro: la
Commissione europea tenta la via della presunzione di subordinazione, in Giornale di Diritto del Lavoro e di Relazioni Industriali,
2, 2022, 656.
41 See art. 2, n. 4, of the Directive proposal.
42 Valente L., Tra subordinazione e autonomia: la direttiva sui rider, in lavoce.info, 15th December 2021.
43 Barbieri M., Prime osservazioni sulla proposta di direttiva per il miglioramento delle condizioni di lavoro nel lavoro con

piattaforma, in Labour & Law Issues, 7, 2, 2021, C-14.
44 Compare Alaimo A., nt (38), 648.
45 See especially the connection between the reference to the presence of “specific binding rules with regard to

appearance, conduct towards the recipient of the service or performance of work” and Uber case. Compare
E.C.J. 20th December 2017, C-434/15, Asociaciόn Profesional Élite Taxi, par. 39: “Uber exercises decisive
influence over the conditions under which that service is provided by those drivers. On the latter point, it
appears, inter alia, that Uber determines at least the maximum fare by means of the eponymous application,
that the company receives that amount from the client before paying part of it to the non-professional driver
of the vehicle, and that it exercises a certain control over the quality of the vehicles, the drivers and their
conduct, which can, in some circumstances, result in their exclusion”.
46 See the reference to the “control” by the platform under article 4, par. 1, of the proposal. Compare Orrù T.,

Brevi osservazioni sulla proposta di direttiva relativa al miglioramento delle condizioni di lavoro nel lavoro mediante piattaforme

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    Hence, one might argue that, when the platform constantly supervises the working
performance (especially through electronic tools), restricts the freedom – or, better, the
liberty47 – of the worker to organize her work and to choose her working periods or periods
of absence, the worker would be arguably entitled to be directly classified as an employee in
almost any jurisdiction.48
    The fact that the same elements are part of a rebuttable presumption mechanism might
thus complicate rather than simply the classification process and it might also generate
further controversies, as the Courts would be asked to simultaneously address the “classic”
circumstances of the employment subordination tests and the various indicia which qualify
for the rebuttable presumption of employment subordination according to the directive
proposal on platform work.
    Conversely, as correctly pointed out by Rosin, “a legal presumption should ease the
process [of classification], and therefore the criterion of control incorporated in the Proposal
should be easier to prove than the criteria regularly used by Courts to determine
subordination”. 49
    Accordingly, the European legislator should rethink the list of the circumstances under
article 4 of the proposal and/or consider to move the latter into the – non-strictly binding –
section of the recitals, rather than in the actual content of the directive.50
    Needless to say, a solution akin to the ABC-Test, where the bulk of the burden of proof
is upon the employer and the employee has only to demonstrate that she carries out a
personal working activity for the client, would surely simplify the classification “dilemma”.
    However, considering that it would lead to the almost automatic classification of any
platform worker as an employee, such a solution would most likely face the opposition of
the platform companies, whose harsh reaction could hinder the chances of success of the
initiative, as the history of the ABC-Test in California shows.


4. Comparative remarks.




digitali, in giustiziainsieme.it, 8 February 2022, Ponterio C., La direzione della Direttiva, in Lavori Diritti Europa, 1, 4,
2022; Di Nunzio P., Piattaforme digitali: la proposta di Direttiva del Parlamento europeo e del Consiglio, in Lavoro Diritti
Europa, 1, 2022.
47 Biasi, M., An Essay on Liberty, Freedom and (Decent) Work, in , in International Journal of Comparative Labour Law

and          Industrial          Relations,     38,      3,       2022,           forthcoming,          (available         at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4115957).
48 Court of Appeals of New York 9th June 2017, Uber; Cass. Fr. 28th November 2018, Take Eat Easy; App.

Paris 10th January 2019, Uber; Employment Trib. Gijón 20th February 2019, Glovo; Employment Tribunal of
Madrid 3rd February 2020, Glovo; Amsterdam Court of Appeal, 16th February 2021, Deliveroo; Australian Fair
Work Commission, 16th November 2018, Klooger v. Foodora; Employment Tribunal of Buenos Aires, 29th
March 2020; Cass. Fr. 4th March 2020, Uber; Tribunal Supremo of Spain, 25th September 2020, Glovo; Trib.
Palermo 24th November 2020, Foodinho; Court of Appeal of Concepción (Chile), 15th January 2021, Pedidos;
Trib. Milan 20th April 2022, Uber Italy.
49 Compare Rosin A., nt (5).
50 Compare Recital 25 under the Draft European Parliament Legislative Resolution of 3rd May 2022 (so called

“Gualmini Report”): https://www.europarl.europa.eu/doceo/document/EMPL-PR-731497_EN.pdf.

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     William B. Gould IV                                                                    Italian Labour Law e-Journal
     Marco Biasi                                                                                   Issue 1, Vol. 15 (2022)
                                                                                                          Section: Theme




   It is hard to deny that the main goal of the ABC-Test is to debunk the cases of
misclassification of workers, which deprive the latter of the statutory (and collective) rights
deriving from the status of employee.
   As clarified by the Californian Courts in the Gig-economy cases, “the misclassification of
workers as independent contractors deprives them of the panoply of basic rights and
protections to which employees are entitled under California law, including minimum wage,
workers’ compensation, unemployment insurance, paid sick leave and paid family leave”51.
   Therefore, the alternative offered by the Prop-22 of an “ad hoc” solution (i.e. a bundle of
rights) for the self-employed platform workers

      does not promote the right to work as an independent contractor, nor does it protect
      work flexibility, nor does it provide minimum workplace safety and pay standards for
      those workers…it appears only to protect the economic interests of the network
      companies in having a divided, ununionized workforce, which is not the stated goal of
      the legislation.52

   Conversely, in the EU Directive proposal there is no prejudice against self-employment
per se, which could potentially be the “correct employment status” of a platform worker.53
   The EU initiative aims at contrasting false self-employment, which occurs (only) “when
a person is declared to be self-employed while fulfilling the conditions characteristic of an
employment relationship”.54
   Indeed, the main goal of the Directive is to improve the working conditions in platform
work in general, including the cases of genuine self-employed work: in fact, the initiative
pursues the same holistic approach of the European Pillar of Social Rights55 in extending a
significant part of the provided protections (see the right to be informed on the automated
monitoring and decision-making process under artt. 6-8) “beyond employment”.56
   Still, the EU initiative addresses only the – either employed or self-employed – workers
of the platforms, thus showing the preference for a selective rather than for a truly universal
approach.
   As a consequence, if part of the current forms of platform work is replaced by the
technological developments (i.e. the food delivery riders by drones and for-hire drivers
by…drive-less cars) the scope of application of the EU directive would significantly shrink,

51 California Supreme Court 10th August 2020, People v. Uber Technologies, Inc. et al., see nt. (22).
52 Alameda County Superior Court 20th August 2021, Hector Castellanos, et al. v. State of California, et al.
53 V. Recital No. 19; compare Ferrante V., La nozione di lavoro subordinato nella dir. 2019/1152 e nella proposta di

direttiva europea rivolta a tutelare i lavoratori “delle piattaforme”, in WP C.S.D.L.E. “Massimo D’Antona”.INT, 2022,
158, 20; Boot G., Platform Work in Europe: The Need for a Multilevel Solution to Protect the so-called Self-Employed, in
European Labour Law Journal, 2021, 1 ff.
54 See Recital No. 20. See also the reference to the primacy of fact under art. 3, par. 2, of the Proposal: compare

Aloisi A., De Stefano V., European Commission takes the lead in regulating platform work, in Social Europe, 9th December
2021 (https://socialeurope.eu/european-commission-takes-the-lead-in-regulating-platform-work ).
55 Compare Starcevic J., The EU proposal for a Directive on Improving Working Conditions in Platform Work, in Comparative

Labour Law and Policy Journal, Dispatch n. 40/2022, 6.
56 Del Frate M., Lavoro tramite piattaforma digitale e politiche europee, in Giornale di Diritto del Lavoro e di Relazioni

Industriali, 2, 2022, 662 ff.

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     William B. Gould IV                                                            Italian Labour Law e-Journal
     Marco Biasi                                                                           Issue 1, Vol. 15 (2022)
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whilst the new forms of work, unless the parallel initiative of an Artificial Intelligence Act
takes off,57 would be left unregulated (at least, in their work-related aspects).
   As to the US, the Pandemic has clearly shown that labor law should be entirely
reconstructed, considering how the American workers lack many fundamental (or, better,
basic) guarantees (ranging from free speech to dismissal protection, without mentioning a
complete health insurance coverage) in the very area of employment subordination.58
   In this sense, the attempt to offer with Prop-22 specific guarantees to self-employed
workers as an alternative to the employment status deriving from the application of the ABC-
Test reasonably appeared as a poisoned pill to the labor movement.59
   In a nutshell, when it comes to labor protection (not only for platform workers), the
distance between the two sides of the Atlantic Ocean seems at present unbridgeable.




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 William B. Gould IV                                                       Italian Labour Law e-Journal
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Copyright © 2022 William B. Gould IV, Marco Biasi. This article is released under a Creative
Commons Attribution 4.0 International License




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