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Amid a Legal Conundrum
Platform economy promotes flexibility and assures autonomy to the workers. With a rapid increase in digitally mediated platforms to govern the world of work, we often overlook the legal existence of workers’ employment status. Around the world, the highest courts are making concerted efforts to re-evaluate the core aspects of the criteria traditionally used to distinguish between employees and the self-employed. However, the judicially interpreted test for employee status determination often provides mixed results. This article, while providing an overview, advocates for using organisational integration tests instead of supervision and control tests to determine the legal employment status of platform workers.
The authors would like to express sincere thanks to the anonymous reviewer for the constructive comments, which greatly improved the earlier version of this column.
Over the last decade, the intensity of online platforms using digital technologies, including algorithms, to match labour demand and supply has rapidly gained ground worldwide. Given their disruptive nature, rapid growth, high visibility and concentration in labour-intensive sectors that are traditionally strictly regulated, digital labour platforms quickly came on the radar of the policy and stakeholder communities as they sparked lively debates on issues such as (unfair) competition, taxation, and inducing precarity and perilous working conditions of platform workers (Lenaerts et al 2017). According to the ILO (2021), the number of digital labour platforms worldwide has increased fivefold during the last decade. In the Group of Twenty (G20) countries, the number of platforms grew from 128 to 611 in the past decade. This represents 79% of the platforms operating worldwide in 2021. Within the G20 countries, platforms are largely concentrated in the United States (37%), followed by the European Union (22%), India (10%), and the United Kingdom (uk) (6%). Among these countries, India deserves special attention. Coupled with its demographic dividend, rapid urbanisation, widespread adoption of smartphones, and associated technology have enabled India to emerge as the new frontier of platform revolution by promoting indecent jobs and intensifying occupational health hazards. According to NITI Aayog (2022), approximately 6.8 million platform workers in 2019–20 engaged in web- and location-based platforms, constituting 1.3% of the total workforce in India. It is further projected that the size of this workforce will grow by 4.1% of the total Indian workforce by 2029–30.
So, on the one hand, the higher employment elasticity for these workers indicates the nature of economic growth and employment potentials, which created greater demand for low- and medium-skill gig and platform workers in India. On the other hand, such employment growth is replete with the challenges of nature and quality of these jobs, as this growth has brought in the structural changes that further strive away from standard employment relationships as well as legal protections and expect these modern workers to function as “independent and atomised workers” (Stanford 2017). So, the natural questions arise: What is the legal employment status of this ever-growing workforce in India? Are they independent contractors or employees of the platform?
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