Algorithmic Work Management
The correct classification of platform workers is essential to ensure that their labor rights are respected and that they do not assume risks and responsibilities that belong to companies.
Work Organization,Control, and Autonomy
In an economic activity, it is of fundamental importance to understand the distinct roles played by companies and employees.
In general terms, companies are responsible for the design, organization, management, and control of an economic activity. They have autonomy to decide on investments, assume financial risks, and receive profits.
On the other hand, employees must follow instructions, rules, and orders from companies in order for such activities to be carried out. They are subject to management, control, and supervision by the company, in addition to having their work monitored and evaluated and receiving salaries for the activities they perform.
These powers of control, supervision, management, and punishment, which are concentrated in the employer's sphere, may be exercised in person, remotely, or even by electronic means.
Algorithmic Management and False Autonomy
The centerpiece of the digital platform work model is what is known as algorithmic work management.
Over the last fifteen years, various digital platforms have implemented algorithmic work management, capable of directing, managing, organizing, supervising, monitoring, punishing, and controlling a range of activities necessary for the development of a business activity, such as:
- Hire workers;
- Conduct training sessions;
- Give instructions;
- Assign clients to employees;
- Monitoring employees
- Set the price of the services offered;
- Calculate employee compensation;
- Measure employee productivity;
- Rewarding and punishing workers;
- Laying off workers, among other activities.
Through sophisticated electronic devices and computational resources, many digital platforms are able to capture vast amounts of data in real time, process it, create digital profiles, and make automated decisions based on the interests of companies.
In this way, even from a distance and without the visible presence of a human being, various digital platforms have the ability to direct, control, supervise, and evaluate the various activities of workers, including applying punishments when the rules stipulated by companies are not followed.
When workers carry out their activities under the algorithmic management of platforms that control, organize, supervise, and monitor their work, they do not participate in any decisions related to the activity.
business and do not keep the profits from the business, that is, they act as true employees and not as self-employed workers.
However, under a "false autonomy,", employees not only do not have their labor and social security rights respected, but are also subjected to a system that often forces them to assume the risks and costs of a business activity, without having real independence and without receiving the profits.
This is because, in this way, they:
- Their rights as workers are not respected;
- They do not engage in genuine business activity; and
- In many cases, they assume the financial costs and risks of the companies that created the platforms, without participating in their profits or deciding on their investments.
97%
of private passenger transport drivers using platforms say that the amount they receive for their work is determined by the platform.
80%
Delivery workers for platforms state that the deadline for completing tasks or work activities is determined by the platform.
85%
Delivery workers for platforms claim that it is the company that determines which customers are served.
IBGE – Continuous National Household Sample Survey Telework and Work Through Digital Platforms – 2022
The Challenges of Algorithmic Work Management
Algorithmic management in the context of labor relations has posed challenges involving workers, courts, and governments.
The first concerns the way in which many digital platforms classify their workforce as self-employed or even as customers of the platforms.
Courts in different countries, however, have highlighted aspects of the algorithmic management and business model of various platforms to deny this classification of the workforce as self-employed. Courts in Europe have indicated, for example, that many platforms integrate workers into their organization; and/or direct and control their activities; and/or restrict the autonomy of their workers, etc., but do not classify them as employees, but rather as self-employed.
At the same time, some governments have sought to strengthen the fight against false autonomy in digital platform work by creating specific laws aimed at regulating labor relations on digital platforms.
The second challenge posed by the spread of algorithmic management concerns its lack of transparency.
The systems created by various platforms mobilize a series of data about workers, create profiles about them, and implement automated decisions.
However, the reasons for this and how it is done are largely unclear. There is not always complete information, for example, about the types of data captured, when they are captured, for what purposes, where and for how long they are stored, who has access to them, etc. These issues that permeate the functioning of digital platforms can influence the most diverse aspects of work: from the remuneration of workers to a possible termination of the platform.
The issue of transparency, on the other hand, has also been the subject of attention from courts and governments.
Workers and their representatives have been seeking legal access to information on how algorithmic management actually works and have questioned automated decisions implemented by platforms.
In turn, there are legislative initiatives that aim to substantially regulate algorithmic work management, restricting its activities, making it transparent, and effectively monitoring its performance.
SOURCES
The Courts of Europe and Algorithmic Work Management
The introduction of algorithmic work management by various companies has brought with it a series of challenges for workers and public authorities around the world.
In particular, the issue of the correct classification of workers—especially those on the most emblematic digital platforms for private transportation or food delivery—has required courts in several countries to analyze and issue various rulings on the algorithmic management of work implemented by many platforms.
Faced with such challenges, a first and fundamental question concerns how digital platforms contractually designate the relationships they establish with their workers. Courts around the world, while not entirely disregarding the terms of contracts drafted by platforms (terms of use) – predominantly in a unilateral manner – focus on the actual relationships established between the parties to decide on the classification of workers.
From the outset, this implies tackling a specific problem posed by various digital platforms: the opacity of algorithmic management, i.e. the resistance of many companies to making information available about the internal workings of their systems.
On this issue, a key point, recognized by several courts, is the centrality that digital platforms themselves have to the business model of many of these companies, that is, the way in which for many of them the main means of production of the activity carried out is the platform itself, which organizes the various aspects of providing a service. Cars, motorcycles, or bicycles, for example, although essential for work, are secondary when compared to the importance of the digital platforms themselves. For the courts that have addressed this issue, this was fundamental in indicating that, despite such secondary instruments being owned by the workers, they cannot be taken as an indication of self-employment.
On the other hand, recognizing the platform as the main means of production also indicates the need for a detailed analysis of how many platforms manage their workforce algorithmically.
Several courts have indicated that the freedom to turn an app on or off or to accept or reject orders sent digitally are not sufficient elements to designate a worker as self-employed. Furthermore, they have understood that certain platforms implement sanctions to restrict the possibility of workers rejecting the services transmitted by the applications or use bonuses, ranking systems, promotions, etc. to keep them logged into the companies' systems for as long as possible.
Even from a distance and without the visible presence of a human being, capturing and processing a large amount of data from workers and customers, the algorithmic management of platforms is capable of effectively directing and controlling the various aspects of service provision: managing the assignment of customers to a worker; determining the rules, forms, and deadlines deemed appropriate for the performance of a service; calculating the prices to be charged to customers and the remuneration to be paid to workers; monitoring the execution of an activity in real time; evaluating the work performed and calculating the productivity of a worker; implementing sanctions, including the dismissal of workers from the platform itself.
As a result, many companies have workers who spend long hours connected to their systems and subject to algorithmic management. This has led certain courts to rule that these workers are effectively integrated into the organization of these companies.
Carrying out the main activity for which the platform is known - delivering food, for example - and, in some cases, using tools with company identifications, or even uniforms, the workers are recognized not as owners of their own business, but are confused with the digital platforms' own brand, which some courts have also considered to be an indication of integration into the company's organization.
The fundamental point of this integration, however, once again refers to algorithmic management and the central role that many platforms play in the business model of these companies. As certain courts have recognized, there is no genuinely entrepreneurial or independent activity on the part of workers, since they depend on a non-transparent system of algorithms that restricts their ability to independently optimize their activity and earnings—and which is, moreover, designed and modified unilaterally by the company.
In such cases, a relationship is established that can further aggravate the worker's position, given that they assume responsibilities such as the costs of work tools and materials and fluctuations in demand for the services offered, without being able to decide, or having their independence seriously limited, on issues such as the value of their services, the manner of execution, the possibility of forming their own client portfolio, etc.
Considering these various aspects, which obviously must be analyzed on a case-by-case basis, there is a tendency among European courts, particularly in final decisions, to reject the classification that certain platforms make of their workers as self-employed. The concern here, of course, is the protection of the rights of these workers, recognizing, in some cases, the need for case law to update and refine its analyses in order to prevent the increase in job insecurity.
On the other hand, the European Union recently approved a directive regulating platform work, which will be implemented by the 27 member states in the region. The directive seeks to strengthen public authorities in verifying employment relationships in platform work, as well as to substantially regulate algorithmic management, restricting its activities, supervising it, and seeking to make it more transparent.