By Rajat Sinha and Sahil Artwani
Introduction
The ‘gig economy’ has been under scrutiny for bypassing labour laws across the globe. A gig economy is categorized by popularity of temporary and mobile jobs and businesses which tend to recruit independent contractors and freelancers rather than full-time workers.[1] The archaic system of full-time employees who seldom change jobs and rather concentrate on a lifelong profession is something that undermines such an economic system.[2] This system is largely governed by mobile phone applications which act as a medium for the services performed by the ‘gig–workers’. For instance, in online platforms like Swiggy, or Uber, or Amazon, the driver or the delivery guy, are the ones at the bottom of the production line are often called the gig workers.
In India, the Code on Social Security, 2020 [“Code”] while recognizing the concept of ‘gig workers’,[3] defines them same as persons who works, or participates in a work arrangement and earns from such activities that are outside of traditional employer-employee relationship.[4] Further, the Code recognises the idea of workers working for an online platform as ‘platform workers.’[5] The Code has classified the platform workers as a sub-set of the gig-workers.
While the concerns related to the status of these workers i.e., independent contractors or employees, has been a point of discussion across the globe, the discussion on the altered employee-customer dynamics seems to have been completely ignored. A major change that has taken place in the labour regime is regarding the ‘over–subordination’ of workers. It needs to be seen that this over-subordination, instead of being driven by the employers, is now driven by the customers. Consumers in the modern economy are usually given an option to the rate the services they received from the workers, which they hired through an online medium.[6] This rating is subsequently used by other customer to choose the best service provider and discard the ones with lower ratings. Therefore, in a gig economy, with employers, customers should also bear some responsibility with respect to labour protection since they are the ones directly in contact with workers.
The Nature of Work Involved in a Gig Economy
A gig economy is generally categorized under two forms of works, i.e., the Crowdwork,[7] and the work on demand through mobile or computer applications.[8] In Crowdwork, the work is carried out via online channels that put in infinite number of institutions, companies and individuals in communication through the internet, eventually enabling consumers and employees to be linked globally.[9] The nature of tasks performed through this medium can vary to a considerable degree. These can range from tasks as small as completing survey and tagging photos[10] to as complex as development of a website or coding a programme.[11] In case of work on demand, the traditional services such as cleaning, driving, cooking, washing, etc. are offered to customers through mobile applications, on one-time basis.[12] Normally, the firms operating these applications interfere in determining the basic service criteria and in choosing and maintaining the workforce.[13]
The gig economy is characterized by a delivery of services at an extremely high speed. The use of internet substantially reduces the costs associated with the transaction. Thus, the ability for anyone to hire anyone from any place in the world has allowed for a degree of flexibility unimagined in the traditional business model.[14] However, the pay as you go model has allowed labour to be seen as a sheer commodity.[15] One danger is that these practices are not even known as work in this kind of economy. They are usually designated as “gigs”, “rides” etc. which further add to their commodification.
The Impact of Customer Surveys and Ratings on the Labour
The platforms or facilitators in the gig economy hold a significant control over the workers. These platforms have the ability to constantly monitor the performance of a worker by means of the rating and reviews provided by customers. Instead of a passive matchmaking, such rating structures ensure that the worker completely conforms to the firm’s policy and customer instructions. In fact, these ratings are often used to terminate the workers from the platform when they receive lower ratings.[16]
After taking a closer look, it is stated that it is not the firm that exercises a considerable control, it is, in fact, the consumer who is at the root of the control. These online platforms work on the framework of an ‘online reputation’ which is useful for guiding the selection process of workers and to thereby ensure smooth performance of the system.[17] Therefore, it is only the customer-generated data that makes it possible to control the labour. Because only those with the highest credibility are provided and delegated to more lucrative and better paying assignments, it is likely that some workers always remain excluded from receiving a better opportunity.
Thus, the problems associated with the gig economy cannot be solved by imposition of minimum wage laws because the new structure is inherently based on the ‘pay as you go’ model. Further, it not feasible to prohibit the gig economy because it is indeed true that the gig economy has substantially reduced transaction costs and has provided access to labour to those in need. In essence, it has made our lives easier and more efficient. Therefore, we argue that the solution to this labour law crisis should be devised from within the framework of gig economy.
The Use of Customer Surveys as a Model For Worker Satisfaction
One of the ways to protect the gig workers could be by correcting the power imbalance between the customers and workers. This could be done by the development of a large-scale customer reputation system. This is already undergoing in form in popular application services such as Uber[18] and eBay which have allowed the workers to rate and review their customers after the service has been availed. A more detailed rating of customers was proposed by the project titled Turkopticon in 2008. Therein, the workers could rate consumers on four criteria, (i) communication, (ii) generosity, (iii) fairness, and (iv) promptness.[19] This is a step to move beyond simply efficiency and customer centrism towards the incorporation of more moral and social values into the system. In fact, organizations like Uber have started blocking the accounts of customers who are rated extremely low by the drivers.[20]
While the idea appears simple, the use of the review of customers in formation of labour laws could be transformational. This is primarily because, despite being an important stakeholder, customer has been generally absent in labour law formulation. In fact, the vanishing control of the firm and the advent of the consumer has remained completely unnoticed in the labour law development. Thus, it is important to improve the relationship and interactions between customers and workers. While it is true that the negative feedback is a cause of emotional exhaustion, positive feedback has been said to stimulate workers and buffer the negative assessment.[21] Thus, customers are also enablers of satisfied workers.[22] The satisfaction of a worker then directly impacts his ability to stay in the employment for longer durations and increase his productivity.[23]
Therefore, in determining the actual impact of customers on workers is quite complex. The answer could be found by the use of Self-Determination Theory.[24] This theory states that human beings have four basic needs, (i) belongingness, (ii) autonomy, (iii) relatedness and (iv) competence.[25] Prof. Y. Malhotra studied the impact of the Self Determination theory from the customer relationship perspective.[26]He found that when workers develop the skills necessary to effectively interact with their customer, they found themselves to be more valued and had higher need satisfaction. Thus, the feeling of being valued was triggered among the workers by the positive feedback received from the customers.
Therefore, along the lines of the Work-related Basic Need Satisfaction scale which is used to capturing the satisfaction of the workers, a scale can be developed to assess the relationship between customers and workers.[27] Herein, a set of questions would be put before the customers and workers alike and they would be asked about their feelings for the others side.
Suggestions and Concluding Remarks
Having analyzed as to how the gig economy is shifted the control largely from the hands of the employers to the end customers leading to over-subordination of the gig-workers, it is the need of the hour to formulate labour laws that could address the changing needs of the market. In these suggestions, the core of the labour law is taken as the satisfaction and well-being of the vulnerable gig workers in the economy. Herein, we would attempt to distribute this responsibility between both the employers and the customers.
Firstly, in all situations where the customers are required to rate the services provided by the workers, the employers must regulate the negative reviews received by the workers. Since it is difficult to assess the workers from the crude 5-point ratings, the customers should be asked to write a small review in case they are genuinely dissatisfied with the service.
Secondly, we saw previously that some organisations such as Uber and Turkopticon have allowed the workers to rate their customers. It is our suggestion that the government should mandate all such platforms to integrate some kind of system where the workers could be allowed to rate the customers. This would serve three purposes, first, it would provide a psychological satisfaction to the workers when they come across a customer who showcases alien behaviour, by allowing them to rate and review the customers, second, emanating from the previous point, we can see that this would eventually lead to a promotion of a culture of good behaviour by the customers towards workers, and third, this would also allow the firm to chalk out customers who are giving genuine reviews of the workers.
Thirdly, the government can mandate the adoption of the need satisfaction surveys by the employers. The need satisfaction survey allows us to identify the actual needs and expectations of the customers and workers alike.
The crux behind all these suggestions is to reduce the gap of power between the workers and customer. The idea is to end the notion of considering customers as the king of market and establishing a more balanced space where workers’ well-being could also be looked into, particularly in a gig economy. While determining the content of labour law in a gig economy, what must be remembered is that it is the aim of labour law is to protect the worker. In this regard, the source of exploitation is irrelevant i.e., while the traditional labour was governed more by the demands of the employers, the gig labour is governed by the needs of the customers. The need based cross surveys of labour and customers, could allow us to understand what could be considered as the minimum rights for the gig labour.
The authors, Rajat Sinha and Sahil Artwani, are undergraduate law students at the National Law University, Jodhpur.
[1] Alex de Ruyter, Martyn Brown and John Burgess, The Fourth Industrial Revolution, 72(1) J. Int. Aff. 8 (2019).
[2] Id. at 40.
[3] Code on Social Security, 2020, §2(35).
[4] Id.
[5] Id., §2(61).
[6] See, Uber, Rating a driver at https://help.uber.com/riders/article/rating-a-driver?nodeId=478d7463-99cb-48ff-a81f- 0ab227a1e267.
[7] Valerio De Stefano, “The Rise of the ‘Just-in-Time Workforce’: On-Demand Work, Crowd-Work and Labour Protection in the ‘Gig-Economy’”, Conditions of Work and Employment Series Report, no. 71, International Labour Organization (ILO), Geneva: 2016.
[8] R. Smith and S. Leberstein, Rights on Demand: Ensuring Workplace Standards and Worker Security in the On-Demand Economy, National Employment Law Project (New York 2015) (hereinafter “Smith et. al”).
[9] Id.
[10] L. Irani, Justice for Data Janitors, PUBLIC BOOKS (2015).
[11] Fayomi et. al., The global opportunities in online outsourcing, WORLD BANK REPORT (2015).
[12] Smith et. al., supra note 8
[13] Id.
[14] M. Cherry, Beyond misclassification: The digital transformation of work, 37(3) Comp.Lab. L. &Pol’y. J. 577, 577 – 602 (2016).
[15] Id.
[16] O’Connor et al. v. Uber Technologies, Inc., et al., Document 251, United States District Court, Northern District of California (11 March 2015).
[17] J. Prassl, M. Risak, Uber, Taskrabbit, and Co.: Platforms as Employers – Rethinking the Legal Analysis of Crowdwork, 37 COMP.LAB. L. & POL’Y. J 619-651 (2016).
[18] Hamza Shaban, Uber will ban passengers with low ratings, THE WASHINGTON POST (29 May 2019) at https://www.washingtonpost.com/technology/2019/05/29/uber-will-ban-passengers-with-low- ratings/#:~:text=Uber%20passengers%20can%20see%20their,they%20have%20received%20from%20drivers (hereinafter “Hamza Shaban”)
[19] Turkopticon Frequently Asked (28 September 2014) at https://turkopticon.ucsd.edu/faq/index.html#7.4
[20] Hamza Shaban, supra note 18
[21] R.M. Stock and M. Bednarek, As they sow, so shall they reap: customers’ influence on customer satisfaction at the customer interface, 42(2) JOURNAL OF THE ACADEMY OF MARKETING SCIENCES 400 (2015).
[22] Id.
[23] Id.
[24] Deci, E.L. and Ryan, R.M, The ‘what’ and ‘why’ of goal pursuits: human needs and the self-determination of behavior, 11(4) Psychological Inquiry 227-268 (2000).
[25] Ryan Deci et. al., Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development, and Well-Being, 55(1) American Psychologist 68 – 78 (2000).
[26] Malhotra, Desperately Seeking Self-Determination: Key to the New Enterprise Logic of Customer Relationships, Amcis 2004 Proceedings, 490 (2004).
[27] DaianaColledani et. al., The Work-Related Basic Need Satisfaction Scale: An Italian Validation, Frontier Psychology (2018).
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