VIETNAM NATIONAL UNIVERSITY, HO CHI MINH CITY UNIVERSITY OF ECONOMICS AND LAW FACULTY OF ECONOMIC LAW GRADUATION THESIS REGULATING WORKERS IN THE GIG ECONOMY: LESSONS FROM THE UNITED S
Problem statement
The rise of self-employment is accelerating, driven by digital platforms like Handy, Doordash, Deliveroo, Uber, Grab, and Gojek, which are transforming the landscape of work, social interaction, value creation, and profit competition In Vietnam, a recent Anphabe survey reveals that 14% of individuals are full-time freelancers, 26% engage in part-time freelance work, and 13% juggle both full- and part-time jobs Similarly, in England and Wales, around 4.4 million people participate in various forms of independent work, including food delivery, taxi driving, and content creation In the United States, the freelance workforce has reached approximately 59 million, highlighting the significant impact of freelancing on the economy.
$1.21 trillion to the country's GDP in 2020 3
Freelancing has long been a popular way to earn extra income, but recent years have seen a significant shift as more individuals pursue full-time freelance careers, moving this trend into the mainstream This growth is evident on both the supply and demand sides; many workers now prioritize flexibility and autonomy, while companies increasingly find it more cost-effective to hire independent contractors A 2018 survey by Ernst & Young Global highlighted that organizations are drawn to the benefits of contracting with freelancers, underscoring the evolving landscape of work.
1 Quynh Nguyen (2022), “Freelancing Becomes Increasingly Popular Among Professionals”, https://e.vnexpress.net/news/trend/freelancing-becomes-increasingly-popular-among-professionals-
According to new research by the Trade Union Congress (TUC), the gig economy workforce in England and Wales has nearly tripled over the past five years This significant growth highlights the increasing reliance on gig work in these regions For more details, refer to the TUC's findings published in 2021.
3 Chris Kolmar (2023), “23+ Essential Gig Economy Statistics [2023]: Definitions, Facts, and Trends on the Gig Work”, Zippia, https://www.zippia.com/advice/gig-economy-statistics/, accessed on 15/02/2023
4 Teresa Shuk-Ching Poon (2018), “Independent Workers: Growth Trends, Categories, and Employee Relations Implications in the Emerging Gig Economy”, Employee Responsibilities and Rights Journal, No
31(1), Springer Professional, pp 63–69 using freelancers were to control total labor costs, complete projects requiring special competencies, and respond to seasonal workforce requirements 5
The rise of mass technologically mediated connectivity has significantly transformed work preferences, facilitating easier matching between workers and clients through third-party platforms This evolution has led to the emergence of the gig economy, where individuals participating in independent work are referred to as gig workers.
As the gig economy expands, protecting the rights of gig workers has become increasingly crucial Vietnam needs to revise its legal framework to address the unique work relationships between gig workers and platform providers, ensuring fair treatment for these workers Unlike the United Kingdom, which classifies gig workers as employees, the United States remains divided on their classification as independent contractors or employees Currently, Vietnam lacks specific recognition and regulation for gig workers, leaving them without the protections and benefits afforded to traditional employees.
With this in mind, the author has decided to do research on “Regulating
This article examines the challenges faced by gig workers in Vietnam by analyzing the legal loopholes that negatively affect their rights and protections By referencing the experiences of gig economies in the United States and the United Kingdom, it seeks to highlight best practices and essential considerations for creating a legal framework that can provide gig workers with certain benefits and protections akin to traditional employment, while preserving the unique characteristics of the gig economy.
The gig economy presents a unique opportunity for businesses to manage costs effectively while also fostering growth Companies can leverage flexible work arrangements to adapt to market demands and optimize their operational efficiency By embracing this model, organizations can potentially enhance their competitive edge and respond swiftly to changing economic conditions.
6 Jamie Woodcock & Mark Graham (2020), The Gig Economy: A Critical Introduction, p 22
Literature review
In recent years, gig workers have attracted significant attention from scholars across various academic fields and have gained legal recognition in countries like the United States and the United Kingdom However, despite the growing prevalence of gig work in Vietnam, this demographic has primarily been addressed through media coverage and conference discussions, with a notable lack of scholarly literature produced by Vietnamese researchers Consequently, this article will reference studies and writings by foreign scholars to provide a comprehensive understanding of the gig economy in Vietnam.
In their 2020 article, "Labor without Employment: Toward a New Legal Framework for the Gig Economy," Alexander Kondo and Abraham Singer explore the evolution of labor law in the United States and how the gig economy disrupts traditional labor assumptions They highlight the role of technology in minimizing transaction costs and separating labor from the conventional employee-employer dynamic The authors introduce the concept of "labor without employment," referring to individuals who earn income independently without direct oversight from an employer They argue that this emerging category necessitates a rethinking of labor law and ethical standards to address the moral responsibilities within the modern economy.
In his 2019 study, I.A.S van Geel explores the regulation of gig work in the Netherlands, focusing on platforms like Uber and Deliveroo The research addresses the need for improved working conditions in the gig economy and proposes specific regulatory measures to enhance the welfare of gig workers By examining offline gig work, the study aims to provide insights into effective strategies for managing the challenges posed by these platforms.
This master thesis adopts a dual approach by analyzing the legal classification of a specific offline gig worker through the lens of Dutch and European labor law It also explores the protections available to gig workers under select European directives related to working conditions The rise of gig work represents a shift towards revenue generation that transcends conventional linear employment models.
The paper "Labor Relation in the Gig Economy" by Bui Quoc Anh, Pham Ngoc Son, Le Xuan Tung, and Nguyen Hai Ninh highlights the significant legal uncertainties surrounding the status of gig workers It emphasizes the critical nature of working conditions, which have a direct impact on employees, noting that many offline gig workers currently lack any form of protection.
Christopher Puusepp's 2019 master's thesis, "Challenges with Gig Workers: A Mediator Perspective," investigates the obstacles faced by gig workers and highlights successful employers who facilitate gig opportunities The research aims to enhance understanding of gig worker management and raise awareness of the challenges that employers may encounter when acting as mediators for these workers.
In her 2017 Master Thesis, "Workers in the Gig Economy: Employees or Self-employed? A Comparative Study on the Concept of Employment in the Gig Economy," Anna Joelsson examines the phenomenon of crowdsourcing, where traditional employee roles are outsourced to a broad audience The thesis explores whether gig workers can be classified as employees, highlighting the arguments on both sides of the debate Joelsson emphasizes the importance of understanding the employer's role, distributing risks among stakeholders, and adapting the labor market to align with emerging trends in the gig economy.
(5) Antonio Aloisi (2016), “Commoditized Workers: Case Study Research on Labor Law Issues Arising from a Set of „On-Demand/Gig Economy‟ Platforms”,
The Comparative Labor Law & Policy Journal features a case study that analyzes various gig economy platforms such as Amazon Mechanical Turk, TaskRabbit, Handy, Wonolo, Uber, and Lyft The author critically examines the terms of service for these platforms, emphasizing the challenges workers face, including inadequate payment systems, insufficient worker protection laws, and flawed dispute resolution mechanisms Additionally, the paper discusses the legal status of gig workers and offers recommendations to improve their working conditions and rights.
Numerous international studies have investigated gig workers' classification as employees, their rights, and benefits However, these research papers mainly focus on the legal frameworks of their respective countries, which may not be directly relevant to Vietnam To effectively apply these findings within the Vietnamese context, it is essential to adapt and refine them according to the country's current situation and regulatory landscape.
Research scope and objectives
This thesis examines the legal landscape for gig workers in Vietnam, with a particular focus on the impact of technology It seeks to analyze and elucidate the legal status of gig workers within the country, drawing comparisons to relevant foreign laws and court rulings By intentionally excluding economic considerations, the study prioritizes necessary modifications to the legal framework governing gig work in Vietnam.
This research focuses on the current laws and regulations applicable to gig workers in Vietnam, the United Kingdom, and the United States In light of the growing prevalence of the gig economy, the author has reviewed a diverse array of sources to deliver a thorough analysis of the legal framework that governs gig workers.
Methodology
Statutory interpretation is a key method utilized across all chapters of this study, enabling the author to explore various approaches to define the characteristics of the gig economy and its workers This method also facilitates an examination of current Vietnamese laws in comparison with those of other countries, including the United States and the United Kingdom These theoretical foundations enhance the persuasiveness of the research.
The comparative method, utilized in Chapters 1 and 2, analyzes regulations and perspectives from the United States and the United Kingdom This approach fosters an objective and multi-dimensional understanding, allowing for recommendations that align with Vietnam's current economic landscape.
The case study method is utilized to research and analyze legal facts, proceedings, questions, and solutions, helping to elucidate the court's stance on legal issues through its judgments Additionally, it assesses the alignment between judicial decisions and the provisions of written law.
Purpose of the study
This thesis aims to clarify the legal classification of gig workers in relation to platform providers, addressing whether they should be considered employees, independent contractors, or if a new category is warranted The author will analyze the gig economy's concepts and characteristics to establish a foundation for understanding gig workers' rights and their interactions with platform providers Additionally, the research will include an examination of pertinent legal articles and court cases from the United States and the United Kingdom, offering objective insights into the definition, rights, and responsibilities of gig workers.
The thesis serves as a valuable reference for understanding the situation of gig workers in Vietnam and the proposed legal protections based on foundational theory While gig work is not new in Vietnam, its complexities remain underexplored The Labor Code 2019 has improved the definition of "employment contract," yet it fails to address the relationship between gig workers and platform providers Given the triangular nature of the gig economy, it is crucial to analyze the dynamics between gig workers and the companies that facilitate their work.
Structure of the thesis
Chapter 1: Introduction to gig workers
Chapter 2: Foreign laws on gig workers
Chapter 3: Legal regulations regarding gig workers and recommendations
INTRODUCTION TO GIG WORKERS
Concept, characteristics
The rise of digital technology has transformed how businesses utilize data, enabling them to gain valuable insights into customer behavior, market trends, and workforce dynamics This shift has fostered a robust digital economy, prominently featuring the gig economy model Originating from the concept of short-term engagements in the music industry, where artists are compensated for individual performances or "gigs," this model allows for flexible work arrangements without the necessity of regular commitments, although repeat performances may occur for popular acts.
The gig economy is characterized by short-term, temporary, and unpredictable tasks, where access to opportunities relies on performance and reputation While technology plays a crucial role in facilitating this economy, it is just one part of a complex set of factors that influence its development Many individuals are drawn to gig work not only for its flexibility but also due to the difficulty in securing traditional full-time employment.
The interplay of technology, societal attitudes, and political economy shapes the modern landscape, where platform infrastructure and mass connectivity drive consumer preferences This evolution reflects a growing desire for flexibility among workers, influenced by state regulation, worker power dynamics, and the impacts of globalization and outsourcing.
11 Paul Oyer (2020), “The Gig Economy: Non-traditional Employment is a Great Opportunity for Many, but
It Won‟t Replace Traditional Employment”, IZA World of Labor, doi: 10.15185/izawol.471
The term "gig economy," coined by Tina Brown, former editor of The New Yorker, refers to the trend of knowledge workers engaging in multiple freelance projects and consultancies within a digital marketplace However, interpretations of the gig economy vary The Cambridge Dictionary defines it as a work model where individuals have temporary jobs or undertake separate tasks, each compensated individually, rather than being employed by a single employer De Stefano further categorizes labor platforms within the gig economy into two distinct types.
(i) Crowdwork, involving workers complete job tasks through online platforms; and
On-demand work through apps involves executing tasks like transportation or delivery, facilitated by companies that establish service quality standards and oversee workforce selection and management.
De Stefano's classification of work delivered through online platforms as crowdwork suggests that "work on-demand via apps" is a subcategory of crowdwork rather than a separate entity To address the terminological confusion, Todolí-Signes introduces the term "on-demand economy" and emphasizes a crucial distinction within crowdsourcing categories, highlighting the difference between generic and specific uses.
In their 2020 article for the Harvard Business Review, Sameer Hasija, V “Paddy” Padmanabhan, and Prashant Rampal explore the potential impact of the COVID-19 pandemic on the future of knowledge work They discuss how the crisis may accelerate the shift of traditional employment structures towards the gig economy, highlighting the increased flexibility and remote work opportunities that have emerged The authors argue that this transformation could redefine job security and work dynamics, prompting a reevaluation of how knowledge workers engage with their roles in a post-pandemic world.
13 Cambridge Dictionary, “Gig Economy”, https://dictionary.cambridge.org/dictionary/english/gig-economy, accessed on 15/02/2023
14 Valerio De Stefano (2016), “Introduction: Crowsourcing, the Gig Economy and the Law”, Comparative
Labor Law & Policy Journal, p 2 specific platform 15 The work is either assigned and processed by platforms or negotiated by the independent worker and the integration with client‟s workflow 16
The gig economy is a business model that provides flexible employment options for workers, moving away from traditional full-time roles This model is supported by internet-based technology platforms and smartphone applications, allowing businesses to easily find and hire gig workers for specific tasks.
The gig economy and the sharing economy, while both leveraging internet-based platforms, are fundamentally different concepts The sharing economy emphasizes the exchange and delivery of goods and services, allowing individuals to monetize their assets, as seen with platforms like Airbnb that connect property owners with renters Its main goal is to link underutilized assets with consumers in need Conversely, the gig economy centers on providing temporary, project-based employment opportunities, creating a flexible workforce for employers and gig workers alike.
The gig economy consists of three key elements: gig workers, customers, and the platforms that connect them By leveraging digital technology, these platforms effectively link customers with gig workers, streamlining the process of finding and offering flexible job opportunities This innovative approach to organizing modern gig jobs showcases the transformative power of platform technology in today's workforce.
In "The End of Subordinate Worker?" Todolí-Signes (2017) explores the implications of the collaborative economy, on-demand economy, and gig economy on the protection of crowdworkers The article, published in the International Journal of Comparative Labour Law and Industrial Relations, highlights the urgent need for regulatory frameworks to safeguard the rights and welfare of workers in these evolving economic models.
In their 2019 Master of Science thesis at KTH Royal Institute of Technology, Kristin Karlsson and Johan Wranne explore motivation within the gig economy, focusing specifically on gig workers in the IT and business consulting sectors The study provides valuable insights into the factors that drive individuals to engage in gig work, highlighting the unique challenges and opportunities faced by these professionals.
17 Georgina Gửrửg (2018), “The Definitions of Sharing Economy: A Systematic Literature Review”,
18 Rafael Laurenti, Jagdeep Singh, Joao Miguel Cotrim, Martina Toni & Rajib Sinha (2019), “Characterizing the Sharing Economy State of the Research: A Systematic Map”, Journal of Sustainability, https://www.mdpi.com/2071-1050/11/20/5729, accessed on 17/02/2023 characteristic of this type of work 19 This is a direct outgrowth of the gig economy's origin within the digital economy realm For instance, Grab's terms of service specify that it is a technology company that serves as a mediating platform for users to access services provided by third-party providers Companies exert varying degrees of control over gig workers in the gig economy landscape This can range from allowing gig workers to set their own prices and choose the work they undertake, to regulating their rates and deciding the work assignments Gig workers retain substantial autonomy, including the ability to dictate their working hours, the extent of their involvement, and their physical workspace This serves as a distinctive hallmark of the gig economy, distinguishing gig workers from traditional employees
The rise of the gig economy has sparked considerable interest in its popularity and the legal implications surrounding the classification of gig workers There is no standard definition for gig workers, as the term is often used interchangeably in the media to describe self-employed individuals or freelancers, all of whom exemplify the growing trend of independent work.
The author emphasizes that freelancers and gig workers are distinct categories, primarily differing in control and specialization Freelancers are self-employed professionals who undertake projects for various clients, often utilizing platforms such as Fiverr, UpWork, Toptal, and Hubstaff Talent to work remotely, including across borders While they may maintain an online presence, freelancers do not always rely on online intermediaries to secure their work.
19 Katie Myhill (2020), Gig Work in Scotland: An Exploratory Study of Job Quality Among Gig Workers in
Central Scotland, Doctor Thesis, Heriot-Watt University, p 26
20 Filippo Amedeo Pollio (2022), Gig-workers’ Motivations and Their Entrepreneurial Mindset, Master
Strengths and weaknesses of gig workers
Gig workers enjoy flexibility and control over their work lives, characterized by a high degree of autonomy and payment for individual tasks or services through digital platforms While they can choose their work and hours, they rely on companies to provide these platforms and connect them with customers Additionally, gig workers often do not have the freedom to set their own prices, as many companies determine the rates for the services offered.
The gig economy provides workers with flexible, non-permanent jobs that allow them to escape the traditional nine-to-five routine, offering freedom, self-control, and independence This dynamic work environment is characterized by short-term contractual relationships, where gig workers are compensated only for the tasks they complete through the company's platform, enabling them to dictate the length of their engagement Payments are made upon project completion, highlighting the gig economy's focus on short-term employment opportunities.
The gig economy can present challenges for gig workers by shifting the risk and income volatility from employers, who can handle uncertainty, to individuals who prefer stability While independent workers experience more fluctuations in their earnings compared to traditional employees, this variability often stems from their desire for flexibility and control over their work schedules.
26 Sinicki (2019), “Thriving in the Gig Economy: Freelancing Online for Tech Professionals and Entrepreneurs”, Apress, https://link-springer-com.ezproxy.its.uu.se/book/10.1007%2F978-1-4842-4090-8, accessed on 25/02/2023
27 Christopher Puusepp, “Challenges with gig workers: A mediator perspective”, Research Study of Uppsala
University, p 5 work 28 Although many independent workers hold traditional jobs or have a partner who does, unpredictable income and difficulty finding more clients or projects are concerns
Gig workers do not share the same legal status as traditional employees, lacking benefits such as minimum wage, overtime pay, and unemployment benefits Unlike standard employees, gig workers are not guaranteed a consistent income or work schedule, which leads to lower job security and planning While gig work is often portrayed as a flexible lifestyle, it frequently presents more challenges than advantages It is crucial to broaden the definition of employee to include gig workers, ensuring they receive better protection of their rights and benefits This topic will be explored further in Chapters 2 and 3.
Impact of gig economy on social
The global gig economy, currently valued at $204 billion, is projected to expand by 17% by 2023 By 2027, the United States is expected to see more gig workers than traditional employees This sector now represents one-third of the overall workforce.
29 Abraham, K.G., Haltiwanger, J.C., Sandusky, K & Spletzer, J.R (2019), “Measuring the Gig Economy: Current Knowledge and Open Issues”, AEA Papers and Proceedings 109, p 357
30 Manyika, J et al (2016), “Independent Work: Choice, Necessity, and the Gig Economy”, McKinsey Global Institute, San Francisco
31 Luka Bulian (2021), “The Gig Is Up: Who Does Gig Economy Actually Benefit?”, Interdisciplinary Description of Complex Systems 19(1), 106-119
32 Gitnux (2023), “Gig Economy Statistics 2023: A Look at the Growing Impact of the On-Demand
The gig economy currently represents a significant portion of the global workforce and is expected to grow substantially, with projections indicating it will reach $500 billion in gross volume within the next five years.
The gig economy has become a favored alternative to traditional employment, providing workers with enhanced flexibility and employers with diverse hiring choices With the rising demand for delivery apps and services, the gig economy has opened up new job opportunities, enabling individuals to escape the conventional 9-to-5 office routine and embrace more adaptable lifestyles.
Low-skilled gig work may not significantly boost the economy, but it serves as an essential safety net for many individuals By engaging in gig jobs, workers can effectively balance their time while fulfilling daily responsibilities, such as caring for family Notably, approximately 44% of gig workers rely on this income as their primary source of earnings The gig economy is a rapidly expanding trend, offering flexible work opportunities that cater to diverse needs and lifestyles, whether for supplemental income or adaptable work arrangements.
From an employer's perspective, the gig economy offers significant advantages, particularly in high-volume recruiting scenarios where full-time hires may not be feasible Gig workers eliminate training and recruitment costs, as well as the need for investment in tools and equipment This flexibility allows companies to engage part-time or temporary workers for specific projects or during peak periods Additionally, during economic downturns or crises like the Covid-19 pandemic, relying on an on-demand workforce has become increasingly beneficial for businesses.
33 Finance Online, “40 Gig Economy Statistics You Must Learn: 2023 Market Share & Data Analysis”, https://financesonline.com/gig-economy-statistics/, accessed on 28/02/2023
34 Cheryl A Almeida & Fran O‟Reilly (2020), “The Risks and Benefits of the Gig Economy for Low-Income Young Adults”, JFF Report, p 12
The gig economy has gained popularity as businesses seek innovative methods to reduce expenses during unpredictable periods This trend reflects a shift towards flexible work arrangements, allowing companies to adapt to changing economic conditions while maintaining operational efficiency.
The rise of gig workers has introduced significant legal challenges in labor regulation To establish an appropriate regulatory framework, a new classification for gig workers is essential Additionally, it is crucial to clarify the nature of the relationship between gig workers and the platforms they operate on—whether it is a contractual agreement or an employment relationship under labor law Furthermore, protecting the rights and interests of gig workers is vital to ensure they receive the benefits they deserve while maintaining the integrity of the gig economy model.
Conclusion
Chapter 1 of the thesis introduces the concepts of the gig economy and gig worker, which are still not unanimously agreed on The gig economy model provides flexible, temporary jobs to workers through technology platforms, and gig workers use these platforms to perform tasks and are paid proportionally The chapter discusses the advantages and disadvantages of this economic model and its history in the economy and society The author also notes controversies regarding the legal framework for gig workers, which will be addressed in subsequent chapters.
FOREIGN LAWS ON GIG WORKERS
Regulations on status of gig workers in the United States
The gig economy is flourishing worldwide, particularly in advanced nations like the United States, where it offers diverse freelance and flexible job opportunities A key component of this economy is ride-hailing platforms, which represent a significant portion of gig workers, with Uber being a prime example Uber transformed the transportation sector by creating a user-friendly platform that connects customers with drivers for on-demand rides This innovative model provides drivers with the freedom to choose their working hours while offering customers a variety of vehicle options that cater to their needs and budgets.
Drivers earn a portion of the fare paid by customers, with the remaining amount going to the platform owner Similarly, DoorDash allows individuals to generate income through food and drink deliveries A Dasher's total earnings are made up of base pay, tips, and occasional promotions for qualifying orders, providing opportunities for increased income by completing multiple deliveries at once.
As participation in the gig economy grows, there is an increasing focus on safeguarding the rights and interests of gig workers This rise in engagement has led to numerous legal disputes between gig workers and platform providers, highlighting the ongoing debate over the classification of gig workers as either employees or independent contractors.
36 John M Barrios, Yael V Hochberg & Hanyi Yi (2021), “Launching with A Parachute: The Gig Economy and New Business Formation”, Elsevier, https://doi.org/10.1016/j.jfineco.2021.12.011, accessed on 01/03/2023
Determining the status of gig workers, such as those working for DoorDash, can be complex and varies significantly by jurisdiction A notable example is the case of McGillis v Dept of Economic Opportunity, which illustrates the differing opinions on gig worker classification Understanding how Dasher pay is calculated is essential for those involved in gig economy jobs.
McGillis sought reemployment assistance after Uber revoked his access to their technology, but the Florida Department of Economic Opportunity ruled that Uber drivers are not classified as employees and thus are ineligible for such assistance Following this decision, McGillis appealed, yet the court upheld the Department's ruling, citing the explicit terms of the contract that define Uber drivers as non-employees To support its conclusion, the court referenced various case laws, focusing on common-law rules that govern employer-employee relationships when no specific statutory guidelines are provided.
In Florida, the classification of an individual as either an employee or an independent contractor relies primarily on the agreement between the parties involved However, if the actual conduct of the parties contradicts this agreement, the real-world operations take precedence Thus, the determination of employment status is based not solely on the parties' statements but on the overall circumstances of their interactions.
38 Darrin E McGillis v Department of Economic Opportunity; and Rasier LLC, d/b/a Uber, Fla 3 rd DCA
2017, No 3D15-2758, https://law.justia.com/cases/florida/third-district-court-of-appeal/2017/3d15- 2758.html, accessed on 01/03/2023
39 Brayshaw v Agency for Work Force Innovation, et al., Fla 1 st DCA 2011, No 1D09-5894, 58 So 3d 301,
302, https://caselaw.findlaw.com/fl-district-court-of-appeal/1556357.html, accessed on 01/03/2023
40 Stephen Keith v News & Sun Sentinel and Crawford and Company, Fla 1 st DCA 1994, No 92-3037, 667
So 2d 167, 171, https://case-law.vlex.com/vid/keith-v-news-sun-892449531, accessed on 01/03/2023
The case of J Edward Cantor, Saul Cantor, and Rose Cantor, doing business as Cantor's Candy & Tobacco Company, against Robert Cochran and the Florida Industrial Commission was decided in 1996 This legal matter, identified as No 34342, is recorded in the Florida Supreme Court with the citation 184 So 2d 173, 174 For more details, you can access the full case documentation at [Justia](https://law.justia.com/cases/florida/supreme-court/1966/34342-0.html), as of January 3, 2023.
The court considered multiple factors outlined in the Restatement (Second) of Agency as follows 42 :
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
When assessing employment relationships, it is crucial to consider whether the individual is engaged in a distinct occupation or business Additionally, the nature of the occupation should be evaluated, particularly in relation to whether the work is typically performed under the employer's direction or by a specialist operating independently without supervision.
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business
The court emphasized that no single factor is conclusive in classifying Uber drivers as independent contractors or employees, highlighting the "extent of control" as the most critical criterion for determining gig worker status This perspective aligns with the precedent set in Verchick v Hecht Invs., Ltd., which established that the primary test for an employer-employee relationship is the employer's direction and control over the worker Control is defined as the authority to dictate the tasks to be performed and the manner and timing of their execution.
42 Restatement (Second) of Agency §220, “Definition of Servant”, p 23, http://beta.blenderlaw.com/wp- content/uploads/2007/08/restatement-second-of-agency.pdf, accessed on 01/03/2023
43 Peter Andrew Verchick, et al v Hecht Investments, Ltd., Fla 3 rd DCA 2006, Nos 3D05-918, 3D05-916,
924 So 2d 944, 946, https://casetext.com/case/verchick-v-hecht-investments-ltd, accessed on 01/03/2023
44 Zachery Herman v Robert Roche, Laroche Construction, Granados, Fla 1 st DCA 1988, No 87-813, 533
Both employees and independent contractors experience some level of control from the hiring entity It is crucial to examine whether this control pertains solely to the outcomes expected or also encompasses the methods used to achieve those results Typically, if the control is limited to the desired results, it indicates an independent contractor relationship.
In fact, McGillis must agree to the terms and conditions set forth in
Before using Uber's application, users must agree to the "Software License and Online Services Agreement," which clarifies that the relationship between Uber and drivers is that of independent contractors, not employment According to Article 2.4, drivers have the autonomy to accept, decline, or cancel ride requests in accordance with Uber's cancellation policies Uber does not monitor drivers directly; instead, user ratings determine driver performance, and a low rating can lead to account deactivation Drivers are responsible for their vehicles and are not required to display Uber branding or wear uniforms, allowing them the flexibility to use other ride-hailing services as well.
45 Harper ex Rel Daley v Steve Toler, Fla 2 nd DCA 2004, No 2D03-694, 884 So 2d 1124, 1131, https://casetext.com/case/harper-ex-rel-daley-v-toler, accessed on 01/03/2023
46 Uber Services (2014), “Software License and Online Services Agreement”, https://uber-regulatory- documents.s3.amazonaws.com/country/united_states/p2p/Partner%20Agreement%20November%2010%202 014.pdf, accessed on 01/03/2023
According to Article 2.5.2 of the Software License and Online Services Agreement, if your average rating drops below the Minimum Average Rating, the Company will inform you and may grant a limited timeframe to improve your rating Should you fail to raise your average rating above the Minimum Average Rating within the specified period, the Company retains the right to deactivate your access to the Driver App and Uber Services.
Under Article 2.4 of the Software License and Online Services Agreement, it is clearly stated that you maintain full rights to utilize other software applications alongside Uber Services and to pursue any other profession or business activities.
McGillis exercised discretion in choosing between Uber and Lyft, leading the court to determine that he was not an employee of Uber As an Uber driver, McGillis had the autonomy to decide when, where, and how to provide rides, which contrasts sharply with the control typical of traditional employment Consequently, McGillis is not eligible for reemployment assistance.
In the case of Berwick v Uber Technologies, Inc., the California Labor Commissioner examined the relationship between Berwick, a driver, and Uber after Berwick's resignation without notice Uber contended that Berwick was an independent contractor, denying her claims for unpaid wages and expense reimbursements The Labor Commissioner evaluated whether an independent contractor or employment relationship existed, referencing the S.G Borello & Sons, Inc v Dept of Industrial Relations case and applying the Borello test, which includes specific factors to assess the nature of the working relationship.
(a) whether the person performing services is engaged in an occupation or business distinct from that of the principal
49 Barbara Ann Berwick v Uber Technologies., Inc & Rasier-CA LLC, No 11-46739 EK, 2015 WL
4153765, https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article88&context=historical, accessed on 03/03/2023
50 S G Borello & Sons, Inc., v Department of Industrial Relations, No S003956, 1989, 48 Cal 3d 342, https://law.justia.com/cases/california/supreme-court/3d/48/341.html, accessed on 03/03/2023
Regulations on status of gig workers in the United Kingdom
The gig economy significantly influences the UK's economy, contributing approximately £20 billion in 2022, similar to the United States Key players include Uber and Deliveroo, alongside platforms like Fiverr, Upwork, and TaskRabbit that connect freelancers with clients for remote jobs and on-demand services A notable case for analysis is the Supreme Court's unanimous rejection of Uber BV v Aslam on February 19, 2021, which recognized former Uber drivers Yaseen Aslam and James Farrar as workers entitled to basic rights and benefits, such as minimum wage and sick leave.
Although Uber drivers do not have formal employment contracts, they operate under an agreement with Uber Judges identified three key elements that define a worker: the existence of a contract for services, individual performance of those services, and the nature of the relationship where the other party is not a client of the individual’s profession In this case, the judges emphasized the importance of the contract aspect, concluding that Uber drivers perform driving services as individuals under such contracts The central question remains whether these drivers are classified as working under contract.
62 Margot Roosevelt & Suhauna Hussain (2021), “Prop 22 is Ruled Unconstitutional, a Blow to California Gig Economy Law”, Los Angeles Times, https://www.latimes.com/business/story/2021-08-20/prop-22- unconstitutional, accessed on 03/03/2023
63 Lisa Baker (2022), “UK Gig Workers Face Financial Exclusion When Accessing Loans and Mortgages”,
Business in the News, https://businessinthenews.co.uk/2022/11/29/uk-gig-workers-face-financial-exclusion- when-accessing-loans-and-mortgages/, accessed on 05/03/2023
In the case of Uber BV et al v Aslam et al., the UK Supreme Court addressed whether Uber drivers are classified as workers performing services for Uber or if Uber merely acts as an intermediary that facilitates the connection between drivers and customers The court's decision has significant implications for the gig economy and the rights of workers within it For more details, refer to the judgment document available at the Supreme Court's website.
Uber emphasized that the agreement explicitly states that when a Customer accepts a User's request for transportation services via the Uber app, the Customer is responsible for providing those services This action establishes a direct legal business relationship between the Customer and the User, without involving Uber or its affiliates Additionally, Uber clarified that there is no discrepancy between the written terms of the agreement and the actual operational relationship.
Judges emphasized the necessity of interpreting legal provisions to safeguard workers' rights, particularly in cases where the bargaining power between parties is imbalanced It is essential to consider the overall circumstances surrounding an agreement, as the written contract may not fully reflect the true intentions of the parties involved In the case of Uber drivers, their unequal bargaining power necessitates an evaluation of their rights based on legal standards, rather than merely relying on contractual terms.
The Section 230 Employment Rights Act 1996 aims to protect workers from exploitation and unfair treatment, focusing on preventing underpayment To classify an individual as an employee, the court considers two key factors: the worker's dependence on the employer and the employer's control over working conditions and pay Dependence refers to the worker's reliance on the company's platform for their tasks, while control is assessed through three specific criteria that help determine the employee status of Uber drivers.
Uber retains the authority to establish pricing for each ride and dictate the fees that drivers must remit to the company Additionally, drivers are prohibited from independently providing promotions to customers.
Uber drivers are required to accept agreements drafted solely by Uber to utilize the app, which dictates all transactions between drivers and passengers Importantly, drivers have no authority to modify these contracts.
Uber regulates driver acceptance of ride requests through its application, which includes monitoring passenger ratings that drivers must consider when accepting rides Additionally, the platform tracks drivers' acceptance and cancellation rates to ensure compliance with these standards.
Uber's control over its drivers extends beyond commercial interests, highlighting their dependency and compliance A key aspect of this control is the requirement for customers to rate drivers after each trip; if a driver's rating falls below the Minimum Average Rating, they face warnings and potential automatic logout While customer ratings are typically used to inform purchasing decisions, Uber's system focuses on performance management rather than customer satisfaction This approach ultimately serves as a basis for contract termination, reflecting a dynamic of submission and control akin to traditional employer-employee relationships.
Uber has implemented regulations to minimize communication between passengers and drivers, ensuring that drivers do not form relationships with passengers who can book rides outside the app When a ride is requested, passengers cannot choose their drivers; instead, the request is sent to the nearest available driver Once accepted, all communication is limited to ride-related information and is facilitated through Uber's app, safeguarding personal contact details from being exchanged.
The court determined that Uber drivers are employees entitled to labor rights, supported by substantial evidence This landmark Supreme Court ruling affects over 60,000 drivers and may influence other companies with similar business models The case draws parallels to the California situation in the United States, where Uber has successfully argued against classifying its drivers as employees through Proposition 22.
22, Uber in the United Kingdom initiated “third way” for gig workers, which would offer drivers protections without sacrificing the flexibility that is a hallmark of the gig economy 66
The Supreme Court judgment was compatible with Employment Rights Act
The distinction made in the 1996 legislation between "employees" and "workers" is crucial for protecting the rights of individuals in various employment arrangements Employees are defined as those working under a contract of employment, while workers include anyone performing services under any type of contract, regardless of its form This classification aims to safeguard the interests of workers, including independent contractors, who may operate under similar control and dependence as traditional employees.
The Court does not classify Uber drivers as employees of Uber; instead, it evaluates them as "dependent workers" under Section 230(3)(b) This designation indicates that while they are not formal employees, they still possess certain worker rights and dependencies.
65 Costas Pitas (2021), “Uber Faces UK Supreme Court Ruling on Worker Rights in Gig Economy Test”,
Reuters, https://www.reuters.com/article/us-uber-britain-idCAKBN2AJ007, accessed on 05/03/2023
66 Ryan Browne (2021), “Uber Proposes California-style Gig Work Reforms in Europe”, CNBC, https://www.cnbc.com/2021/02/15/uber-proposes-california-style-gig-work-reforms-in-europe.html, accessed on 05/03/2023
67 Section 230.3 Employment Rights Act 1996, https://www.legislation.gov.uk/ukpga/1996/18/section/230, accessed on 05/03/2023 still dependent on the company or other individual they work for The concept of
“dependent worker” was first introduced in the United Kingdom in the case O'Kelly v Trusthouse Forte and then codified into law at Section 230(3)(b) Employment Rights Act 1996 68
The Supreme Court's recent decision highlights the adaptability of judges to the evolving gig economy, moving beyond traditional legal frameworks to acknowledge a new dynamic between workers and employers This ruling not only lays a solid foundation for the growth of the gig economy in the United Kingdom but also offers a valuable model for other nations The author suggests that Vietnam could benefit from this approach, as it enables the resolution of gig worker issues within the existing legal structure, eliminating the necessity for new legislation Further insights on this topic will be explored in Chapter 3.
Conclusion
Chapter 2 of the thesis discusses how the United States and the United Kingdom recognize the legal status of gig workers In the United States, the court developed ABC test to consider gig workers as employees with some exceptions Proposition 22 was passed to treat drivers as independent contractors, but still ensures the minimum wage and other benefits In the United Kingdom, the court recognizes Uber drivers as dependent workers, who are not employees but still depend on the company to earn income The author believes that this approach is consistent with the law and shows the flexibility of judges in using the law, which is positive for social development
The article by Ravi Peiris (2021) discusses the implications of the UK Supreme Court's ruling in the case of Uber BV v Aslam and Others, highlighting its significance for labor rights and employment law The judgment is analyzed in the context of the gig economy, emphasizing how it affects the classification of workers and their rights This landmark decision is crucial for understanding the evolving landscape of labor relations and the responsibilities of companies in the gig sector For further details, refer to the International Labour Organisation's publication.
LEGAL REGULATIONS REGARDING GIG WORKERS IN
Current Vietnamese regulations on gig workers
The gig economy in Vietnam began to thrive in 2014 with the introduction of Uber's technology-driven taxi service, which quickly disrupted traditional taxi companies Following Uber's merger with Grab on March 26, 2018, technology-based taxi services continued to grow and diversify In addition to taxi services, app-based platforms have expanded to include motorcycle taxis, goods delivery, and food delivery Today, a wide range of companies provide transportation services through application-based platforms across Vietnam.
The rise of on-demand transportation services via mobile applications has sparked significant debate about the need for regulatory legislation to govern this emerging business model Despite this, conversations surrounding the labor implications of the gig economy have only recently gained traction.
Since 2018, the regulation of relationships between platform companies and gig workers has evolved from discussions among specialists drafting the Labor Code of 2019 to a broader focus involving government agencies, labor unions, legal practitioners, and scholars across various fields Recently, this issue has gained significant attention due to escalating conflicts between technology companies and independent contractors, leading to intensified discussions and a call for regulatory measures.
69 Nam Hai (2017), “Uber‟s transformation and the business tricks considered as illegal in Vietnam”,
VietnamNet, https://vietnamnet.vn/uber-bien-doi-va-manh-kinh-doanh-bi-xem-trai-quy-dinh-o-viet-nam- 357555.html, accessed on 09/03/2023
70 VietnamNet Global (2018), “Grab‟s Acquisition of Uber Opens Door for Vietnamese Firms”, https://vietnamnet.vn/en/grabs-acquisition-of-uber-opens-door-for-vietnamese-firms-E198609.html, accessed on 09/03/2023
The article by Huynh Thi Ngoc Tuyet, Do Hai Ha, Dao Minh Toan, and colleagues (2021) discusses the challenges faced by the motorbike taxi industry in Vietnam, highlighting the precarious conditions of driver partners It emphasizes the urgent need for legal regulations to protect workers in this sector The findings were presented at a seminar focused on labor consulting and research related to technology platforms in Vietnam, held in Ho Chi Minh City.
The relationship between technology drivers and platform companies is increasingly contentious due to the significant influence of technology, leading to disputes regarding regulation A key factor in protecting drivers' rights is determining whether their relationship with technology companies falls under labor law Currently, technology companies explicitly state in driver contracts that they are business partners rather than employees, prompting varying opinions from experts and regulatory authorities on this critical issue.
The relationship between technology drivers and companies is not classified as an employment relationship, leaving drivers without essential labor law protections such as job security, compensation, and social security benefits As a result, drivers face precarious employment and income conditions, lacking the security provided by a social security system To establish a strong legal framework that protects drivers' interests, it is crucial to clearly define this relationship.
The determination of whether an employment relationship is governed by labor law relies on the definition of an employment contract as outlined in Article 13 of the Labor Code 2019 This contract is characterized by an agreement between an employee and employer concerning paid work, salary, working conditions, and mutual rights and obligations Three key criteria emerge from this definition: (i) an agreement between the parties for job performance, (ii) salary payment from one party to the other for the work done, and (iii) oversight and management of the work by one party This article examines how these criteria apply to the relationship between drivers and platform companies.
The initial step involves analyzing the relationship between the driver and the company to determine if it qualifies as an employment contract This agreement may be referred to by different titles, such as the "Minutes of Cooperation Agreement" used by Grab.
The "Independent Contractor Agreement" (Now), "Business Cooperation Agreement" (Baemin), and "Cooperation Agreement" (Be) outline the responsibilities of drivers who provide essential services, including passenger transport and goods delivery through their respective application platforms Specifically, Article 3.3 of the Cooperation Agreement emphasizes the partner's commitment to picking up passengers who book rides via the app, while Article 1.1b of the Independent Contractor Agreement details the contractor's obligation to deliver orders as coordinated through the Now App and the company's dispatch system, along with handling additional transportation tasks as assigned.
According to Article 13.1 of the Labor Code 2019, there is a clear agreement between drivers and platform companies regarding job performance, regardless of the terminology used to describe this relationship The article emphasizes that if the content reflects aspects such as paid work, salary, and management oversight, it qualifies as an employment contract Additionally, it is important to evaluate whether the relationship between the driver and the platform company meets two other criteria, which will be discussed further.
The author raises concerns about whether drivers are compensated with a salary, noting that while they may seem to receive fares directly from users, the actual amount is determined by the company This determination relies on two key factors: the freight rate, which is set solely by the company in agreement with the customer, and the commission rate, which defines the profit-sharing arrangement between the company and the driver Although drivers can choose to accept or decline rides, they lack the authority to set the freight rate Additionally, the company has the ability to modify the commission rate based on current conditions.
The notion that ride-hailing drivers operate as independent business partners sharing income with app-based platforms fails to recognize the significance of driver bonuses, a vital part of their earnings These bonuses depend on various performance metrics such as ride completion rates, total rides, sales volume, and adherence to company policies and customer feedback Unlike the income distribution among true business partners, which is based on proportional contributions, these bonuses are largely influenced by compliance with platform regulations, aligning more closely with employee compensation than profit-sharing in a partnership.
Ride-hailing drivers' earnings are primarily determined by the policies of the platform companies rather than through direct negotiation with customers Similar to traditional transportation, drivers have the option to accept or reject ride offers, but their remuneration ultimately comes from the platform rather than the riders This highlights the significant influence of company regulations on driver income in the ride-hailing industry.
The key consideration in assessing the relationship between a driver and a technology-based ridesharing platform is whether the driver is under the management, supervision, and administration of the company This criterion is essential for understanding the nature of their relationship.
(i) It is the company that designates the driver to pick up passengers and directs them to carry out the work during the ride, utilizing the platform application
The company rigorously oversees driver performance by meticulously tracking working hours, locations, movements, and customer feedback During driving, the company may also issue instructions or warnings to drivers This level of supervision and administration is notably more direct and stringent compared to traditional labor relations, highlighting a unique approach to driver management within the framework of the cooperation agreement.
Recommendations for legal improvement for Vietnam
Applying existing labor laws to technology drivers appears unjustifiable due to the need for flexibility in employer-employee relationships Current regulations, including restrictions on working hours and strict severance procedures, may not align with the unique dynamics of this sector To tackle these challenges, the author presents recommendations based on the UK's experiences while considering Vietnam's legal context.
To address the inadequacies of the current Labor Code in defining employment contracts, it is essential to revise the definition to encompass the worker's dependence on the employer and the employer's control over working conditions and remuneration The author argues that full-time gig workers in Vietnam, particularly those in technology-driven roles, fulfill the criteria to be classified as employees However, the ambiguity in existing labor laws leads to legal disputes and prevents these workers from accessing their entitled benefits As the gig economy evolves, establishing clear criteria is vital to provide fair legal protection for vulnerable workers, ensuring their rights are upheld under labor law.
Establishing regulations for gig workers' rights and obligations is crucial, taking into account their unique circumstances Gig workers should enjoy general employee rights under labor law, along with additional entitlements that reflect the gig economy's nature, such as a percentage of earnings that platform providers can retain instead of a fixed minimum wage They should also receive severance pay and unemployment benefits based on their time worked for the platform Obligations for gig workers include adhering to agreements with platform providers and complying with relevant labor, social insurance, health insurance, and safety laws This adherence does not compromise the flexibility of gig work but supports the sustainable growth of the gig economy.
Conclusion
In Vietnam, gig workers are subject to labor laws, and despite some ambiguities in the Labor Code 2019, they should be recognized as employees With the gig economy thriving, there is an urgent need for a stable legal framework to safeguard the rights of these workers The author suggests redefining employment contracts and modifying certain rights and obligations to better align with the unique characteristics of the gig workforce Additionally, the author advocates for regulations regarding fees, unemployment benefits, severance allowances, and oversight of companies employing gig workers.
The thesis investigates the gig economy and its workers, defining gig work as temporary, flexible jobs facilitated by technology platforms It identifies gig workers as service providers on these platforms and discusses their historical significance in the economy and society The analysis includes US and UK court rulings recognizing Uber drivers as employees, and argues that the employment relationship between technology drivers and platform companies should be governed by labor law, granting them standard employee rights along with additional protections suited to gig work By clarifying employment contract definitions and establishing regulations for gig workers' rights and obligations, the author posits that Vietnam's gig economy can evolve in a fair and sustainable way.
3.Proposition 22: Service Protection Act and Application-Based Drivers
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