European Union Directive
The most comprehensive legislative initiative to date for the protection of the rights of digital platform workers regulates the presumption of employment and the algorithmic management of work.
In March 2024, the European Union approved the Directive of the European Parliament and of the Council on improving working conditions on digital platforms. It is the most comprehensive regulation on platform work to date.
The European Union Directive is mandatory for the 27 member states in the region and establishes the presumption of an employment relationship in each country, in accordance with how national laws assess the control and direction of work performed by platforms.
In addition to the presumption of employment, which is of paramount importance, another merit is the detailed regulation that the directive provides for the algorithmic management of work, protecting not only workers employed by platforms, but all people who work on them, even those considered to be genuinely self-employed. To this end, the directive requires substantive transparency in algorithmic management, sets limits on its use, and monitors it.
The European Union Directive stipulates, for example, that:
- “All” types of automated decisions or decisions supported by automated processes on digital platforms, including those that do not significantly affect workers, must be disclosed to them, their representatives, and, when requested, to national authorities. The categories of data and parameters used by the systems must be included in the information provided by the platforms (Art. 9);
- Platforms must provide information about the automated monitoring of workers, including the purpose for which such monitoring is carried out and the recipients of the data generated by it (Article 9); and
- Representatives of platform workers must also be informed and consulted about the introduction of automated monitoring and decision-making systems or any substantive changes made to them. Given the complexity of analyzing such systems implemented by companies, workers will have the right to choose an expert to analyze the issue. In the case of companies with more than 250 workers, this expert will be paid for by the platforms themselves (Art. 13).
The Directive also imposes a series of restrictions on the collection and processing of employee data and on the operation of automated systems on platforms. For example:
- Companies will not be able to handle data on the emotional or psychological state of workers, will not be able to access their private conversations, will not be able to capture data from moments when the worker is not performing their activity, they will not be able to process personal data relating to the exercise of fundamental rights of employees, such as freedom of association, or data related to ethnic or racial identification, political opinions, union membership, immigration status, health status, sexual orientation, etc. (Art. 7); and
- Automated monitoring and decision-making systems shall not exert "undue" pressure on platform workers or be organized in such a way as to pose a risk to the physical and mental health and safety of workers (Article 12).
However, transparency and the limitation of data handled by platforms can only be guaranteed through the supervision of systems designed by companies. Herein lies a fundamental point, which the Directive addresses by stipulating that:
- Workers' representatives will have to regularly assess the impact of automated decisions on issues such as working conditions, equal treatment, potential discrimination, health, safety at work, etc. (Article 10);
- Platforms must provide the necessary staff for such assessment, i.e., those who have the "competence, training, and authority" to perform it and to override automated decisions. These employees must be protected against dismissal or equivalent measures, disciplinary measures, or any other treatment that is unfavorable to the performance of their duties (Article 10).
- The directive stipulates that companies must declare to the authorities of the Member States the number of people working for them, the activities they perform, their contractual status, the terms and conditions governing the platforms, as well as data such as the average duration of activities, the weekly number of hours worked per person, average earnings, contractual relationships with intermediaries, and other additional information requested of them (Art. 17); and
- The courts and competent national authorities shall have access, where necessary, to "all" evidence under the control of platforms, and the courts shall have the power to request the disclosure of evidence containing confidential information, with the proviso, of course, that Member States shall ensure effective measures to protect such information (Art. 21).
These and a series of other provisions make the European Union Directive the most comprehensive legislation on platform work to date.