Contratos y equidad en las relaciones de trabajo digital

Equity and legal concern urges governments to regulate all expressions of

crowdworking. This leads us back to Howcroft and Bergvall-Kåreborn (2018):

The rapid growth of crowdwork has resulted in a regulatory lacuna as

platforms have been permitted to grow in the shadow of the law, raising difficult legal
questions. While some argue that crowdwork is simply a ruse for avoiding regulation,
others claim the business model is so novel that it disrupts existing schemes. Given
the footloose and borderless nature of crowdsourcing, platforms position themselves
in a ‘regulatory sweet spot’. Technology start-ups in particular practice what has been
described as ‘regulatory entrepreneurship’ whereby legal uncertainties are critical to
their business model. Many of these firms seek to change the law by eliminating legal
risks and incorporate political lobbying as a vital component of their business
strategy. They employ innovative tactics which include scaling at speed in global
markets, becoming ‘too big to ban’, ensuring the legal grey area becomes publicly
salient, then using technology to mobilise users as a political force. While the growth
of crowdwork is presented as a tale of technological connectedness and efficiency,
much of the price advantage can be attributed to the circumvention of regulations.
When compared with competitors operating within the realms of the law, this
environment markedly favours the financial interests of high-tech companies,
enabling them to challenge established rules to benefit their own interests and
extending deregulation to previously protected areas. As platforms dodge the
financial responsibility ordinarily assigned to an employer, this has a negative impact
on the fiscal contribution towards nation states. (…) Bogus [false] self-employment
represents a process of legal engineering that shifts risk onto workers who are
unprotected by minimum wage legislation or any other workplace entitlements. The
working environment is far removed from the traditional understanding of self-
employment given many are working for a single employer and have negligible levels
of autonomy. Legal challenges have clustered mainly around type C crowdwork [e.g.
Uber], since confronting real-world exchanges which occur in an identifiable
geographical space is more straightforward.1 2

1
For example, in the UK a landmark employment tribunal in 2016 ruled that Uber workers are not self-
employed and should be classed as ‘workers’ who are entitled to the national living wage and holiday pay.
Other successful lawsuits followed (e.g. City Sprint and Excel couriers) with the self-employed being
awarded worker status.
2
[Important implications follow from the European Court of Justice’s sentence dated 20th December 2017
relative to the case n°C-434/15 (the “Decision”)].
The following text (pp. 201-204, in Waas, B.; Liebman, W.B; Lyubarsky, A & K. Kezuka (2017) shows
how Japanese platforms contribute protecting crowdowrkers through the terms of service (TS).

Microtasking Crowdwork

i) This task type of crowdwork is, as mentioned above, used for relatively simple
typological work such as text entry and writing, or collection and classification of data,
with remuneration determined in advance. According to the terms of service (TS), the
ordering party (client) must clearly state the unit price of the task and the delivery
deadline in advance. The TS of Lancers Co. sets the lower price limit (300 yen), but
there is no predetermined deadline. The TS of Crowdworks Co. sets no lower limit on
the price, but there is a maximum deadline (14 days). Provisions for contract
completion are also characteristic. The contract between the worker (the worker is
generally called a “lancer” by Lancers, a “user” by Crowdworks) and the client (the
term used by Lancers, Crowdworks) comes into effect when the client approves the
task which the registered worker selects and performs. Once the contract becomes
effective, the client cannot reject the task without reasonable grounds, and the
refusal of acceptance cannot be more than 30% in any circumstances. The contract
between the crowdworker and the client is referred to as a “contract for a business
service” (gyoumu itaku keiyaku) in the Crowdworks TS and a “transfer agreement of
all the transferable rights of selected production” in the Lancers TS. ii) Every TS of
crowdsourcing provides that the contract for business service must be a direct
contract among or between website members. However, the client must pay, in
advance to the platform (transfer or credit card payment), the total amount of
remuneration calculated according to the unit price and the total number of tasks. If
the crowdworker completes the task, the platform pays the remuneration to the
crowdworker. In this way, crowdworkers can avoid payment problems. From the
viewpoint of crowdworkers, the platform is an agent which collects and remits
remuneration. iii) Regarding the concluding date of the contract, there is room for
discrepancy between the TS and the actual transaction. In the task system, the TS
says that the contract between the worker and the client is concluded when the client
approves the task to be performed by the worker. However, unlike the competition
type described below, the client cannot decide whether to accept or reject the work
performed by the worker after having seen it. The client is only able to reject poor
work. Therefore, it is enough that the contractual relationship is concluded when the
worker for the task is selected.
Competition Type

In the competition type of crowdwork, a client calls for submissions by crowdworkers

for the creation of logos or illustrations, and pays remuneration for the work after
choosing from among many worker submissions. According to the terms of service,
the client shall determine the “remuneration amount” and “particulars of the
request” and specify the competition format. Additionally, the client must explicitly
state the “submission deadline” of a job request (Crowdworks: within 14 days;
Lancers stipulates no upper limit) and the “selection decision deadline” after the
submission deadline (Crowdworks: within 14 days; Lancers: within 21 days). The
contract between the worker and the client becomes effective when the client adopts
the proposal of a specific worker. The contract is a “transfer contract of all the
transferable rights for the selected product” (Lancers TS). Payment of remuneration is
the same as with the microtask type: the client must pay the amount of the
remuneration as security to the platform in advance. The platform pays the
remuneration to the worker after the client decides to adopt his or her work. The
difference with microtasking crowdwork is that the client is entirely free to accept or
reject workers’ submissions. On the other hand, after deciding which submission to
accept, the client does not have the right to seek modification or confirmation of the
chosen proposal without that worker’s consent.

Project Type of Crowdwork

i) Unlike the microtasking and competition types, in project work a job is performed
after contract conclusion [in Contract Law contract “conclusion” refers to the moment
parties fix contract terms and engage in a contract relationship after negotiation]. The
client-user presents the project job with its description, proposed remuneration, the
delivery deadline, and other pertinent information. Worker-users apply for the job
and await the client’s notification of the chosen contractor. The contract is concluded
when the chosen worker is notified and approves it. ii) Lancers’ platform has a team-
order scheme (Crowdworks and Crowdgate do not have the team scheme). To
conclude a contract under this scheme, the lead worker approves the winning notice
from the client, and then must immediately obtain the consent of all team members
about how to divide the remuneration. If the lead worker cannot obtain the consent
of all members within seven days after having approved the winning notice, the team
is deemed to have declined the project offer (Lancers TS, Art. 13, and para. 2). iii) In
addition to a fixed remuneration amount, there is characteristically an hourly wage
paid for the time spent on a job. Paying the hourly rate necessitates measuring
“business hours”. Workers are to measure “business hours” on a weekly basis and
report the time by the next Monday. When a worker does not report business hours,
the platform calculates hours using time-card software. Clients are required to
approve the hours between Tuesday and Friday. Clients can, with reasonable
 grounds, refuse to approve apparently dishonest time reports for the performance of
projects, but refusals cannot exceed 30% of the reported time. Additionally, clients
must deposit funds for the “maximum amount of business hours” in platform
accounts before workers start their jobs (TS of Lancers and Crowdworks, by Sunday of
the previous week).

References:

Howcroft, D. & , B. Bergvall-Kåreborn (2018) “A Typology of Crowdwork Platforms” Work,

Employment and Society, pp. 1–18. Available from:

https://journals.sagepub.com/doi/full/10.1177/0950017018760136

Waas, B.; Liebman, W.B; Lyubarsky, A & K. Kezuka (2017) Crowdwork – A Comparative Law
Perspective. Bund Verlag. Stuttgart. Available from

https://www.hugo-sinzheimer-
institut.de/fileadmin/user_data_hsi/Veroeffentlichungen/HSI_Schriftenreihe/Waas_Liebman_Lyu
barsky_Kezuka_Crowdwork.pdf