what the legislation is like in other countries

Brazil, like the whole world, has been struggling to define rules for work in transport and delivery apps. After months of debates, representatives from the Ministry of Labor, businesspeople and unions finally concluded a regulatory proposal for drivers of vehicles such as Uber and 99. There was no agreement, however, in relation to delivery drivers who use apps such as iFood.

Complementary Bill 12/2024, sent to Congress in February by the Executive, faces resistance from both parliamentarians and workers in the segment, who fear being “stuck” by regulation. Meanwhile, more than 10 thousand actions are being processed in the Labor Court seeking recognition of employment relationships or compensation from the platforms.

The scenario of uncertainty is not exclusive to Brazil. This is a global challenge imposed by the so-called “gig economy”, which concerns the increase in digital work platforms. According to a 2021 report from the International Labor Organization (ILO), the number of companies of this kind has increased fivefold in the last decade in the world.

Legislation does not keep up with the speed of change. While courts in several countries debate fundamental issues, such as the existence or not of employment relationships between drivers and platforms, parliaments seek to approve laws that can discipline and harmonize labor relations.

“Imposing specific laws to protect those who work on digital platforms has been a rare and unconvincing undertaking”, says José Pastore, professor at the Faculty of Administration of the University of São Paulo (FEA-USP) and author of the study “The protections of workers in digital platforms”.

The big challenge is to find a balance between the flexibility provided by new technologies and the need to guarantee a minimum base of social security security, avoiding precarious work. “It’s a difficult task,” Pastore points out in his study.

Worker per application: employee, self-employed or independent?

The first step for legislators is to determine criteria that differentiate employees from self-employed or self-employed workers. In this sense, the world scenario is as diverse as it is intricate.

“Some countries have adopted more protective approaches to workers, classifying them as employees with the right to labor benefits, while others maintain the classification of independent workers, with fewer protections”, says Elimar Mello, labor lawyer and partner at Badaró Almeida Advogados.

The only consensus is that professionals operate in a gray area, which leads to controversial interpretations.

“While they are not employees in the traditional sense, they are also not fully autonomous, as they receive guidance from the platform on how to proceed with their work. Some consider them to be in a limbo for which there are still no specific laws,” says Pastore. “This situation has resulted in divergent legal actions, based on different definitions of employees and self-employed people.”

Below is an overview of regulations and laws around the world, exploring how different nations face the challenge.

App-based work legislation in Europe

A European Union has been discussing guidelines to protect its more than 28 million workers on digital platforms. A recent effort to improve working conditions has been through Parliament’s proposal to reclassify “gig” as “employee workers”, with access to basic labor rights. The movement could benefit more than 5 million active drivers, but faced opposition from a majority of member countries, which adopted different provisions.

England: Application workers were called “workers”, an intermediate category between employees and self-employed people. This classification arose from a court decision in the case between Uber and Aslam in 2016. However, there is still no consensus. An appeal to the Superior Court of Justice confirmed the decision to consider platform workers as self-employed professionals and not “workers”, arguing that drivers can accept or reject services and be replaced by other drivers. Cases related to platform workers in labor courts continue to proliferate.

Spain: On Spanish soil, many actions have been judged based on the Self-Employed Workers Statute, which defined a third category of workers: the “economically dependent self-employed”. These workers predominantly work for one company. However, there are still disputes. In 2021, a royal decree known as the “Rider Law” (Royal Decree-ley 9/2021), approved by the Council of Ministers, classified app delivery people as employees of digital platforms. One of the main points of this standard concerns the recognition of a legal presumption of employment for delivery platform workers. A crucial point of the Rider Law concerns the obligation to provide information about algorithms or artificial intelligence systems.

France: French legislation is more protective. The Paris Court of Appeal recognized the employment relationship between Uber drivers in 2019. In 2020, the French Court of Cassation confirmed this decision for an individual case, stating that the driver could not be considered an independent contractor, as he did not it had its own clientele nor did it set its own prices. Therefore, he worked as an Uber employee. Magistrates use adhesion tests, a report of information on working conditions, to define this situation, something common in other European countries and the United States.

Germany: In December 2019, platform workers were considered non-employees as they were not required to accept orders. However, this decision was later challenged in the Superior Labor Court. The difference is in the way workers are hired. Workers are employed by an outsourced company, hired by the platform.

App-based work legislation in the United States

The situation in the United States is complex and fragmented when it comes to regulating work on digital platforms. States have different laws and understandings, which results in a legal maze. The Supreme Court states that there is no single definition that solves all problems related to workers and the platforms themselves. While the state of California classifies Uber as a transportation company that must register drivers as employees, the United States Department of Labor rejects the classification, citing the drivers’ autonomy and independence.

The Ministry of Labor uses adherence tests, which are criteria developed by the Supreme Court. These criteria take into account factors such as the control exercised by the employer, the investments made by workers and the integration of these professionals into the company’s business.

Based on this test, drivers for Uber, Lyft and other platforms are not considered employees by the US Department of Labor. Even so, appeals and appeals to higher courts persist.

The confusion is even greater when there are specific laws in force. To overcome the growing wave of judicialization, many digital platforms in the United States began to include arbitration clauses in professionals’ contracts, making their autonomous and independent status explicit.

App-based work legislation in Central America and Latin America

The City of Mexicoin 2015, and La Paz, in Bolivia, in 2017, were pioneers in regulating the operation of intermediary digital platforms for individual transport. The regulations require contributions, an insurance policy and registration with supervisory bodies.

Since 2023, the Chile has specific legislation for paid passenger transport services, including platforms. Law 21,553 was published on April 19 and took nine months to be regulated. Drivers need to register with the Ministry of Transport and Telecommunications to obtain a special permit. The clash with taxi drivers was very intense before the regulation.

Costa Rica: In March 2023, a court in Costa Rica ordered the recognition of an employment relationship between Uber and the drivers. Despite the decision, the Executive is promoting the Bill on Non-Collective Transport of People and Digital Platforms, with basic requirements for drivers, including a “minimum gross profitability” per kilometer. The law requires drivers to be registered as self-employed with the Costa Rican Social Security Fund (CCSS) and as taxpayers with the Ministry of Finance.

At the Ecuador, transportation apps faced a series of legal challenges to operate. In Quito and Guayaquil, Uber, DiDi and InDrive operate in a regulated manner. In March of this year, Cabify stopped providing the service in the country’s main cities, arguing that “its business model did not react with the same level of growth and profitability as the region”.