Appunti di Diritto comparato del lavoro

GIG ECONOMY

Uber, Lyft, Airbnb, Amazon, car rental, food delivery services are the operators in the sector. The main question is about qualification of workers.

Employment at-will is the rule in the US. In the US the Uber driver can get fired if he's an employee and also if he's an independent contractor. Some workers prefer to be independent contractors because taxes are lower. Employers too prefer the independent qualification, taxes are lower also for them.

While working as a Uber driver it's better being qualified as an employee, you have health insurance, stock option minimum wage laws, benefits (e.g. ), anti-discrimination protection. In employment at-will there's no security.

O'Connor v Uber

A driver said he had to be classified as an employee, Uber denied the qualification. O'Connor claims: tips are included in the price Tips: the policy said "", this means Uber has to give the tips to his drivers. He never got any tip from Uber. The

Tips exist and Uber has the responsibility to give them to the driver. He would get the tips only if he's an employee, not as an independent contractor.

Mileage: if the company sends you to a place has to pay for that. If I'm an employee Uber has to pay for the miles I made.

On-call: if you're on-call you should be paid. When signed on I'm on call, so I should get paid even when I'm waiting for a ride.

Class-action: there's a group of people claiming the same thing and are united in one case. All Uber drivers in California are involved in the O'Connor case. Class-action in gig cases is really useful, it gives drivers with small claims an advantage.

Key issue of the case is whether drives are employees. Could they be employees? The first is a legal issue of the old California test: if the judge decides it could be then it go to the jury.

In California Law if you provide a service to an employer you're an employee.

You are doing something that benefits the employer.

Things the court looks after the first step:

• Is your work an occupation or a business?
• Do you do it without supervision? Are you independent?
• How much skill does it involve?
• Do you provide your own instruments?
• How long do you work?
• When do you get paid?
• Is what you do part of the business of the employer?

Arbitration agreement

Most employers impose an arbitration clause. In the Uber agreement it says drivers cannot have a class action. If they are legal the class-action cannot go forward. If they're illegal the case will go forward, it's good for the drivers.

Joining a class-action, do you have a right to do that?

Drivers from Massachusetts joined the class-action, making it bigger. The case is now worth $854 million dollars and $1 billion dollars PAGA is a private way to enforce labor law. All the million dollars and $1 billion dollars.

on PAGA claims.singolar claims of workers have penalties that united reach 1 billion dollars.

Uber agreed to settle the case for $84 million dollars (plus 16 more related to value on the market). The average driver gets circa $100 dollars.

Attorneys get $25 million dollars.

Uber cannot deactivate from the platform, it now has to make to warning. Uber gets more information about ratings, the arbitration agreement is valid, and the company will help create a driver association (which is not a union).

The case confirms that drivers are contractors, not employees: it’s a win for Uber.

The court rejected the agreement, is not fair to the drives.

The supreme court decided saying the arbitration agreement are valid, Section 7 is something different from class-action which is a civil procedure.

Important is the value of class-action, it’s difficult for individual gig workers to enforce their right.

Another important aspect emerging is the danger of arbitration agreement, they could compromise

The right to go to a jury. Do we need a new test? There are different opinions on the issue.

Sisters Camila case

Keep the old test: it's about charity. You choose how much and when you want to work and also where you want to work. You get paid by a percentage on donations. A union tried to organise those workers, in ordered to join a union you need to be an employee. Are they employees?

NLRB said they're employees, the focus has to be on how you work not only on how much or when you work.

We need a new test: plumber.com to get job. Doesn't control workers. cleaning.com-->employees, there's control (uniforms, charges...)

California Supreme Court agrees to change the test. ABC test is the new one and requires 3 things to be classified as an independent contractor. The standard is now the employee qualification, the burden is moved on gig employer

The worker is free from control and direction.

1) The worker needs to do something different from the

business of the company.
2) Trades person [omissis]
3) California said everybody is an employee, but you can demonstrate that you're an independent contractor by having the three elements of the ABC test.
Employee privacy
Data protection: the general rule is that american workers have the minimum rights. They have Electronic Communications Privacy Act (ECPA) preventing form intercepting communication.
Rules:
Possible public person
1) Possible provided qualification
2) Consent
3) Four cases
Former pilot v. […] airlines
Private web page password protected, for former workers complaining about former employer. The owner of the airlines got some information and asked to some friend to get passwords and the access to take a look. He doesn't like what he see and wants to sue former workers. The only He's not intercepting information, the pilot is not a provider and it's not a public website. The question is consent, is there any consent?
There's consent, when you give the

Access to someone you have to trust and accept someone else:

1. could access the web site. There’s consent only to workers
2. People never went on the site, they just gave the password to the boss. In this situation there’s no consent, I had the consent to access the site but never used it, so there’s no consent to pass the password to someone else.

Lazette v. Verizon

Part of her employment is having a smartphone and she has a company email address and a gmail address. Once she leaves the company and gives back the phone but she didn’t log out from it. The boss got the smartphone logged in her gmail account and looked on 4800 mails. She became aware and sued the company.

Is it lawful for the boss to look at mails and everything?

The account is not public, Verizon is not the provider (emails are on gmail account, the provider is gmail), when agreeing to a privacy policy you’re not agreeing to leaving your rights also on a gmail account.

Patrillo

She had a private myspace page for private workers, purpose of the site was make sexual comments on customers. The employees with the password all used the website, one was forced to give the password to the boss.

Is all about consent. In this case there’s no consent: consent was not free, the employee was forced to give the password (give the password or you’re fired).

Pure power Bootcamp

People working wanted to have their own bootcamp after working for someone. While working they setup the business, the employers saw that and checked on the accounts.

The company where they worker checked all the accounts and discovered the fact.

They were going on private email addresses, not looking on the hard drive at work. They’re not a provider and they haven’t any consent.

Consent can be pretty broad.

When it gets to outside account the employers shouldn’t be able to force the employee to give the password. If you’re an employer you can look at all that is on the

company is required to provide reasonable accommodations for disabled employees. This includes making changes to the work environment or job duties to ensure equal opportunities for disabled individuals. In terms of privacy, employers are not allowed to discriminate against employees based on their disability. They cannot ask for medical information or request medical tests before hiring an individual. However, they can ask about an applicant's ability to perform specific job functions, as long as it is related to the requirements of the position. Once an employee is hired, the employer is prohibited from disclosing any medical information about the employee without their consent. This includes information about their disability or any other health condition. Overall, it is important for employers to respect the privacy and rights of their employees, especially when it comes to sensitive information such as medical records.employer can investigate medical conditions. The job offer has to be fair, neutral, not based on medical conditions. The disabled condition or the medical problem shouldn’t be discriminating, it’s not a factor in hiring. After the job offer, the employer can legitimately ask information to the employee. In theory, it lowers the cases of discrimination. The employer can ask for social media password, is it good? For the employer, it is good, I know a lot of information. On the other side, it can be bad, having that power makes the employer responsible. Once you have the obligation to check, you should check everyone, preventing dangerous situations in order to have a safe work place. It can also be related to protection against sexual harassment. Some laws are made in response to that:

• Maryland made it illegal to ask for password
• ECPA needs to be updated
• Data protection in EU and US

Fiat is subject to European privacy laws (very high), but what happens when a workeris working in the US (with lower privacy protection)? More or less it should apply EU law, usually it applies the laws of the place where you are. There's a special agreement: the privacy shield. When you go to the US, EU privacy protection follows you. GDPR Employees, contractors, former employees... the definition of worker is very broad and comprehends all the workers. Everything is data and everything is protected, employers can only process data under some conditions:

1. Consent of the employee, in Europe is very difficult to give free consent. (e.g. banking data in order to get paid)
2. Necessity for the processing of a contract obligation.
3. Compliance of law.
4. Video-monitoring, it has to be a necessity for proceeding with legitimate employer interest (the business).

If the employee