Recharacterization of the Relationship Between a Delivery Driver and a Digital Platform as an Employment Agreement

Bryan Cave Leighton Paisner

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 delivery driver and a digital platform. The French Supreme Court granted the status of employee to a former delivery driver of Take Eat Easy.

The French Court of Appeal had rejected the employee status because, among other things, the driver remained free each week to determine the time slots during which he wished to work. The French Supreme Court considered, basing itself on objective elements, that the “geo-tracking system which enabled the company to monitor in real time the position of the driver and the number of kilometers covered by him” allowed the company to sanction the driver (via a bonus and malus system). It therefore ruled that the existence of a power of direction and control over how the driver provided his services created a relationship of subordination, 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”. Nine drivers have since filed claims before the Paris Labor Court contesting their status of independent worker. The cases were pleaded last December 18th, 2018. The decision should be rendered in February 2019.

In the United Kingdom, a British Employment Tribunal 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 on appeal by the UK Court of Appeal on 19 December 2018).

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

It is still too early to assess the impact of this ruling: will claims and recharacterizations increase ? Certain digital platforms may decide to make changes in their organization to eliminate certain signs of subordination, which may be difficult in practice (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 the aim of claimants in this type of litigation is often to obtain the benefit of the social security regime or work accident regime and not necessarily to obtain the status of employee, as often the driver wants flexibility at work, but this could change as a result of this new decision.

[View source.]

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Bryan Cave Leighton Paisner

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