Recharacterization of the relationship between a delivery driver and a digital platform as an employment agreement : a real risk for professionals following the French Supreme Court decision of November 28, 2018?

Bryan Cave Leighton Paisner
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In a judgment dated 28 November 2018, the French Supreme Court (Cour de Cassation) ruled for the first time on the characterization of the agreement between a deliverer and a digital platform. The French Supreme Court granted the status of employee to a former deliverer of Take Eat Easy (a company that went bankrupt in 2016). What impact will this case have ?

The question asked related to the recognition of a subordinate relationship between the deliverer and Take Eat Easy.

The Supreme Court’s case law characterizes the subordination link based on objective elements. An employee is someone who performs work under the authority of an employer who has the power to give orders and directives, to control the performance of the work and to sanction failures by his subordinate. This characterization does not depend on the parties’ will, nor on the designation given to the agreement, but on factual conditions in which the professional activity is carried out.

While the French Court of Appeal had rejected the recharacterization because, among other things, the deliverer remained free each week to determine the time slots during which he wished to work, the French Supreme Court considered that the "geo-tracking system allowing the company to monitor in real time the position of the deliverer and the number of kilometers covered by him" allowed the company to sanction the deliverer (via a bonus and malus system). It thus deduced the existence of a power of direction and control over the performance by the deliverer of his service thereby characterizing a subordination link, and annulled the judgment of the French Court of Appeal.

For several years now, litigation related to digital platforms such as Uber has emerged both in France and abroad;  the decisions rendered by the courts however differ.

In France, several Uber drivers filed proceedings to recharacterize their Uber agreement as an employment agreement. On 29 January 2018, the French Labor Court dismissed a former Uber driver's request on the grounds that the driver was "entirely free to work according to the hours and days that suited him", and that "this total freedom in the organization" was "an obstacle to the recognition of an employment agreement".

In addition, the French social security authorities (“URSSAF”) field proceedings before the French Social Security Court (Tass) in 2015 in order to recharacterize the relationships of Uber drivers as indefinite term employment agreements. It lost for procedural defect reasons; the Court did not rule on the subordination link claimed by the URSSAF.

In the United Kingdom, a British labor court ordered Uber on 28 October 2016 to recognize its drivers as workers and consequently pay them at least the minimum wage, contribute to their pensions and grant them paid leave (decision subsequently confirmed, after Uber's appeal).

In the United States, Uber drivers filed a class action to recharacterize their agreement as employment agreements. Uber settled at a $100 million to bring an end to the dispute.

It is still too early to assess the impact of this ruling: will recharacterization requests by drivers or deliverers increase ? Certain digital platforms may be led to make changes in their organization to eliminate certain signs of subordination, which may be difficult in practise (notably as regards the elimination of geo-tracking). As a reminder, independent workers must be able to freely organize their activity and be autonomous. They cannot receive strict orders or directives and must preferably supply their own means to carry out the activity (car, helmet, protection equipment).  Note that this type of litigation often aims at obtaining the protective social security regime or work accident regime and not necessarily the status of employee, as often the deliverer or driver wants flexibility at work. The French « Avenir » bill offered platforms to voluntarily enter into a charter providing for a decent activity revenue, as well as measures to prevent accidents, guarantees in the event of termination, with as a counterpart the non-characterization of a legal subordination link between the platform and the workers. This measure was censured by the French Constitutional Council but will be reintroduced in the “Mobilités” bill. Stay tuned...

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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