A Critical Examination of a Third Employment Category for On-Demand Work (In Comparative Perspective)

Forthcoming, Cambridge Handbook on the Law of the Sharing Economy (Nestor M. Davidson, Michele Finck & John J. Infranca, eds.)

Saint Louis U. Legal Studies Research Paper

20 Pages Posted: 22 Jan 2018

See all articles by Miriam A. Cherry

Miriam A. Cherry

Saint Louis University - School of Law

Antonio Aloisi

IE Law School, IE University; European University Institute - Department of Law (LAW)

Date Written: January 1, 2018

Abstract

A number of lawsuits in the United States are challenging the employment classification of workers in the platform economy. Employee status is a crucial gateway in determining entitlement to labor and employment law protections. In response to this uncertainty, some commentators have proposed an “intermediate”, “third,” or “hybrid” category, situated between the categories of “employee” and “independent contractor.”

After investigating the status of platform workers in the United States, the authors provide snapshot summaries of five legal systems that have experimented with implementing a legal tool similar to an intermediate category to cover non-standard workers: Canada, Italy, Spain, Germany, and South Korea. These various legal systems have had diverse results. There has been success in some instances, and unintended consequences in others.

Accordingly, the authors recommend proceeding with caution in considering the creation of a third category. That is due to the risk of arbitrage between the categories, and the possibility that some workers will lose rights by having their status downgraded into the third category. Cherry and Aloisi posit employee status as the default rule for most gig workers. The authors propose an exception for those working on a de minimis basis or those engaged in volunteerism for altruistic reasons.

Keywords: Platform economy, gig work, sharing economy, misclassification, dependent contractor, employee, dependent contractor, parasubordinate worker, employee-like person, TRADE

Suggested Citation

Cherry, Miriam A. and Aloisi, Antonio, A Critical Examination of a Third Employment Category for On-Demand Work (In Comparative Perspective) (January 1, 2018). Forthcoming, Cambridge Handbook on the Law of the Sharing Economy (Nestor M. Davidson, Michele Finck & John J. Infranca, eds.); Saint Louis U. Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3101736

Miriam A. Cherry (Contact Author)

Saint Louis University - School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States
314-977-04537 (Phone)

Antonio Aloisi

IE Law School, IE University ( email )

Madrid
Spain

European University Institute - Department of Law (LAW) ( email )

Via dei Roccettini, 9
San Domenico di Fiesole, 50014
Italy
(+39)-055-4685-573 (Phone)

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