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The Protection of the “Third Kind of Workers” in Gig Economy from the Perspective of Social Rights
July 27,2020   By:CSHRS
The Protection of the “Third Kind of Workers” in Gig Economy from the Perspective of Social Rights
 
LU Haina* & CHEN Yiheng**
 
Abstract: Due to the new flexible employment mode of the gig economy, many workers in the gig economy cannot be classified according to the traditional dualistic division of labor relations and non-labor relations, and their rights are basically under no protection. As human beings making a living through their labor, the workers in the gig economy should be entitled to basic human rights, among which the most directly related is social rights. The concept and theoretical framework of “independent workers” put forward by American scholars is more conducive to the protection of their social rights. This theory not only has the legal basis of international law, but also conforms to the legislative purpose of striking a balance between the protection of workers and the sustainable development of the gig economy. It is also practical. Based on this theory, China’s national conditions, and the core conventions of the International Labour Organization, we propose a new way to protect “the third kind of workers” in the gig economy.
 
Keywords: independent workers · gig economy · the third kind of workers · social rights · human rights
 
I. Introduction
 
In recent years, with the rapid development of the sharing economy, which features a unique mode of employment different from the traditional mode, how to protect the legitimate rights and interests of workers has become a new and difficult problem for labor laws around the world.1 Like the labor laws (or employment laws) of many countries, in the current labor law framework in China, workers either form labor relations with employers, sign labor contracts, obtain social security of the five insurances and the housing fund, and enjoy various rights such as paid leave, overtime pay, and employment protection, or form service relations with the latter and become so-called freelancers or self-employed workers, without any labor rights. 
 
According to the Annual Report on the Development of China’s Sharing Economy (2018) released by the China E-Business Research Center, the market scale of China’s sharing economy has reached RMB 4,920.5 billion, with 70 million service providers and 7.16 million workers in the gig economy.2 These figures are likely to continue to grow in the future. Many of the workers cannot be classified into traditional labor relations and are basically in a state without any protection of rights.3 However, the fact is that no matter how they are defined by the law, workers in the gig economy are all people making a living with their labor. As human beings, they should enjoy basic human rights. Furthermore, the concept of rights in international human rights laws contains the balance between individual rights and public interests. Therefore, when discussing the solution mode, the rights-based approach is a necessary perspective and a realistic path that can help maintain a dynamic balance between the protection of workers and the development of the platforms. The human rights most relevant to the gig economy workers are social rights.
 
Workers are in a weak position in the relations with the platforms and are extremely vulnerable to exploitation, such as long working hours detrimental to physical and mental health, and injuries during work. However, it is unrealistic to protect all the workers according to their labor relations because this will stifle the vitality of the gig economy, eventually depriving workers of employment opportunities and affecting their right to survival. Therefore, from the perspective of rights protection, it is obviously unreasonable to treat workers in the gig economy in this zero-sum way of “all or nothing”.
 
Chinese academia has also responded to this issue and made a number of proposals. At present, domestic academic discussions mainly focus on the nature of the legal relationship between the workers and the platforms and on finding a solution that can both protect the legitimate rights and interests of the workers and guarantee the sustainable development of the gig economy.4 As for the solutions, Chinese academia has put forward a number of new ideas.
 
Wang Quanxing and Wang Qian, for instance, have proposed shifting from the dual framework of the existing labor laws to a ternary framework focusing on the protection of social insurances (especially work-related injury insurance), labor stan-dards (especially occupational safety and health standards) and public employment services.5 Ding Xiaodong proposed to adopt the approach of functionalism to apply different worker protection responsibilities to different platforms, or encourage enterprises to provide effective protection through state incentives, namely, to deal with the labor relations between the workers and the platforms with a boosting regulation featuring “public-private cooperation”.6 Summing up various academic viewpoints, it can be seen that academia has reached a consensus that the existing “all-or-nothing” dual framework of labor laws in China can no longer protect the large number of workers in the gig economy and other new employment modes and it is thus necessary to break through the existing legal framework and find a new way out. One of the suggested and practiced solutions is the creation of a third kind of workers outside labor relations and service relations. Many countries in the world have started the systematic practice of the third kind of workers. In response, Chinese scholar Xiao Zhu has done a good comparative study and pointed out that China’s labor law should take “the concrete expansion of labor rights” as its basic idea on the basis of the distinction and standardization of the “hidden employment”.7
 
After a comparative analysis on various theories and national practices, this paper argues that the term “independent worker” put forward by American scholars is closer to the rights-based approach in terms of concept and theoretical framework. Besides having the legal basis of international laws, it conforms to the legislative purpose of balancing the protection of the workers and the sustainable development of the gig economy and is also operable; therefore, it has the most referential significance to China. Based on the theory of “independent worker” of American scholars, in combination with China’s legal and socio-economic situation, and taking the theories and standards of social rights in international human rights laws and the core conventions of the International Labour Organization (ILO) as the legal basis, this paper attempts to propose a new idea of protecting “the third kind of workers” in the gig economy suitable for China’s national conditions.
 
II. The Independent Worker Theory
 
A. Overview and theoretical basis of the independent worker theory
 
Seth Harris, former U.S. Labor Secretary and professor of Cornell University, and his colleague Professor Alan Krueger proposed creating a third kind of worker called “independent workers” between “employees” and “independent contractors”.8 Because this kind of worker does not apply to the dichotomy of “employees and in-dependent contractors” in the employment laws of the United States. These workers cannot be regarded as employees because they are not economically subordinate to particular employers and they have a certain autonomy in their working hours; they cannot be regarded as independent contractors because they don’t have the right to bargain on their own and they are more or less controlled by their employers. These characteristics make them fall into a “grey zone” that is difficult to be classified. Therefore, Professor Harris and Professor Krueger proposed to set up a separate category for“independent workers” and provide them with separate protection.9
 
The basis of the theory of “independent workers” mainly comes from the theory of law and economics as well as the theory of workplace social contract in the workplace. From the perspective of law and economics, the consequence of legal uncertainty is the increased probability of legal application errors, which will lead to inefficient operation of the legal system. This inefficiency is manifested by the need to invest more resources to offset the adverse effects caused by errors in applying the law. If the gig workers are forced to be classified according to the dichotomy of “employees and independent contractors” in the existing employment laws of the United States, it is likely to cause the “wrong classification” of the gig workers. The result of misclassification will be that gig workers need to safeguard their rights and interests through a large number of lawsuits, which is a high-cost way for these workers to safeguard their rights, and it will also lead to inefficient operations of the platforms. “Independent worker” can solve the inefficiency caused by “wrong classification” to some extent. By classifying the gig workers separately and giving them special protection, the gig workers can be provided with protection suitable for the characteristics of their work. From the perspective of independent workers, because they lack independent bargaining power like employees, they need social security provided by the government and employers. From the perspective of employers, since independent workers can create similar or identical benefits as employees with costs lower than or equal to that of employees, employers tend to lower the motivation of classifying independent workers as independent contractors for the sustainable development and long-term benefits of businesses. As Professor Harris said, “‘independent contractors’ and ‘employees’ are like two poles supporting a tent. It is impossible for the tent to stand stably and resist strong winds with only these two poles, and independent workers are just the third pole to stabilize the tent.”10
 
Social contract, a concept put forward by Hobbes, Locke and Rousseau, means that the people transfer appropriate rights to the “government”, which utilize the rights transferred from the people to construct a mechanism to maximize the benefits and welfare of the people. The purpose of this mechanism is, on the one hand, to regulate the relationship between the people and the government and, on the other hand, to protect the common interests of the people and the government. The theory of the workplace social contract borrows the concept of the social contract. Simply from theperspective of contract, employers pay remuneration in exchange for workers’ labor or services while workers have the obligation to provide their own labor in exchange for remuneration, which is an economic contract between employers and employees. However, an employment contract has more obvious class nature and there is a clear distinction between employers and employees. In the concept of the workplace social contract, an employment contract is actually a reciprocal agreement formed to reach the common interests of the employer and the employee. Both the employer and the employee provide their own resources (the former provides funds and resources, and the latter provides labor) to achieve common interests. A workplace social contract does not take the formal requirement of entering into a labor contract as an effective condition. As long as there is a substantial relationship between the employer and the employee to pay remuneration and to provide labor, the workplace social contract is valid to both parties.11 A workplace social contract reflects a dynamic balance, namely, the balance between the improvement of work efficiency and the protection of the rights of employees. Therefore, the protection of the rights of employees under the workplace social contract is inseparable from work.12 The right to stay away from dangerous workplaces, the right of collective bargaining and the right to be equally treated are all due rights for the workers. The purpose of creating a new category of “independent workers” for these gig workers is to put them under the protection of workplace social contracts so that they will not be wrongly classified as independent contractors and lose the basic rights for workers.
 
B. Protections for independent workers
 
According to the theory of Harris and Krueger, the protections provided to independent workers mainly include the following.
 
1. Right of organization and collective bargaining
 
The National Labor Relations Act of the U.S. provides employees with the right of collective bargaining with employers.13 According to the Sherman Antitrust Act, “any individual, trade or association in any form that monopolizes or may generate monopolies will be declared illegal”.14 However, the combination of independent contractors with independent bargaining power in the form of collective bargaining is likely to generate a monopoly. Therefore, in order to prevent monopoly risks, independent contractors do not enjoy the collective bargaining power. However, independent workers who do not have independent bargaining power are completely different from independent contractors in terms of their nature in a business, so there is no risk of monopoly for them. The platforms or employers can decide the prices of the businesses engaged by independent workers. From this perspective, the status of independent workers is more similar to that of employees. Harris and Krueger believe that independent workers, when organizing collective bargaining, would be more similar to trade unions in terms of their legal nature. 15
 
2. Protection by anti-discrimination laws
 
US Acts such as the Civil Rights Act and the Age Discrimination in Employment Act, grant employees the right not to be discriminated against on the grounds of race, sex, age, disability, etc.16 However, workers other than employees have not been included in these anti-discrimination protections. The employers, without any law-breaking cost, can arbitrarily treat independent workers in an unreasonable and discriminatory way. However, when independent workers encounter discrimination and cannot work or improve their working conditions, they will fall into the predicament whereby they cannot appeal to applicable laws. Therefore, independent workers should be included in the protection framework of the anti-discrimination laws. 17
 
3. Social insurance
 
In the US social insurance system, employees can receive federal protection, for example, the maximum weekly working hours and the unemployment insurance, and employers are also obliged to provide employees with work-related injury insurance and medical insurance. However, independent contractors cannot enjoy these social security benefits.18 Independent workers, on the other hand, cannot be classified as employees or independent contractors in terms of social insurance. The reason is that if independent workers are identified as employees, they will bring excessive social insurance costs to employers, and some independent workers who only provide parttime work may engage in malicious rent-seeking as “employees”, namely, obtaining protection for employees as independent contractors19. If independent workers are identified as independent contractors, these workers cannot enjoy any social insurance and are mercilessly exploited by the platforms. In order to solve this dilemma, this new classification of independent workers should be provided with corresponding social insurances. However, such social insurance should not be granted to all independent workers indiscriminately, nor should they be fully borne by the employers. Harris and Krueger proposed that workers who work full-time for more than a certain period of time shall be entitled to social insurances provided by the federal government and the employers, but the workers also need to bear part of the social insurance themselves.20 Setting a deadline as a dividing standard would not only prevent some independent workers from using the platforms for malicious rent-seeking, but also provide full-time workers with protection. On the one hand, requiring workers to bear part of the social insurance can reduce the burden of the employers on labor costs; on the other hand, it also grants the workers the right to choose whether to become insured.
 
C. Evaluation and analysis on the theory of independent workers
 
Many scholars in the US hold opposite opinions to the theory of “independent workers”. Some scholars argue that the creation of the “third kind” of workers cannot fundamentally solve the problem because the new classification of workers will aggravate the problem of wrong classification of workers. According to one scholar, although countries such as Italy, Japan, Spain, and Canada have created a category for such intermediate workers and provided them with protections, there are great differences in the identification of this category of workers in various countries, “the check and judgment of these workers are more complicated than the status control and check of employees.”21 The reason is that the proposal of the third kind of worker in these countries as a new category for protecting such workers is based on the strong “dependency” of the workers on the platforms. However, for platforms such as Uber, workers often switch back and forth among many platforms, obviously not meeting the standard of “dependency”; therefore, setting such a new category may not meet the actual situation. Meanwhile, how to determine “dependency” and the criteria for judging “dependency” is still a difficult problem. Other scholars argue that workers in new gig economy, such as Uber, should be directly included in the protection scope of labor laws to protect their rights under public laws.22
 
This paper holds that the category of “independent workers” can solve the confusion and inefficiency caused by the misclassification of workers, instead of aggravating this situation. First of all, what the new classification of workers is intended to break is the rigid dichotomic classification mode of “all or nothing”, and the mode of carrying out special classification before providing special protection can minimize the probability of misclassification. Second, how to establish the criteria of “dependency” is not an obstacle to creating the new category of “independent workers”. The 13 test elements proposed in the Borello test standard for identifying workers adopted by Court of California in the famous Uber case showed that labor relations can and should be judged from multiple angles and with multiple elements.23 The “dependency” standard, which needs to be considered comprehensively with multiple elements, is complex in itself. Therefore, although the criteria for “dependency” vary from country to country and it is difficult to be quantified, this does not hamper the establishment of the category of “independent workers”. The criteria of “dependency” can be continuously refined in practice. Finally, as mentioned above, if “independent workers” are directly classified as employees to get direct protection of the labor laws, the operating costs of the platforms will be increased, and it is also possible that some independent contractors will obtain the protection not belonging to them through malicious rent-seeking.24
 
Some scholars agree with the theory of “independent workers”, namely classifying new workers, such as gig workers, separately and providing them with special protection. Some scholars hold that it is necessary to expand the scope of protection to cover new target groups in existing labor laws to solve the problem that the newtype of full-time workers cannot be protected. Separate classification for these newtype workers is a necessary condition for their protection.25 Some scholars hold that it is fairer to separately classify these new-type workers and set up neutral protection for them, considering that they have some characteristics of employees and some characteristics of independent contractors.26
 
This paper holds that the higher autonomy of independent workers than that of employees cannot be confused with their lack of dependency on the employers. It is just because independent workers have such special properties that they are not suitable for the existing dichotomic framework. A judge once made a tactful analogy to the situation of independent workers: “if these new workers are classified as ‘employees’ or ‘independent contractors’, it is like inserting a square screw into either of two circular holes.”27 It is obvious that the method of separate classification and special protection is desirable.
 
It should be noted that the list of rights drawn up by the theory of independent workers is mainly based on domestic laws of the United States and its jurisprudence. Although it has reference significance for China, it still lacks sufficient basis of positivelaws. International human rights laws and the core conventions of the International Labour Organization provide such a basis of international positive laws. Moreover, regardless of the legal status of gig workers, their status as holders of human rights makes the rights-based approach applicable to the analysis framework of any domestic law.
 
III. Social Rights in International Human Rights Laws and Core Conventions of the International Labour Organization
 
From the perspective of rights protection, workers in the gig economy should certainly enjoy all basic human rights. From the perspective of labor laws, they mainly involve social rights in the sense of international human rights laws, including the right to work and the right to social security related to work. The specific standards of rights are mainly found in international legal documents on human rights formulated by the United Nations, human rights conventions at the regional level, and eight core conventions of the International Labour Organization (ILO) on employment discrimination, prohibition of child labor, forced labor and trade union rights. 
 
A. The right to work and the right to social security in international human rights conventions
 
At the United Nations level, clear provisions on the right to work are provided in documents such as Article 23 of the Universal Declaration of Human Rights, Article 6 to Article 8 of the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the “ICESCR”), Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women, Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination and Article 27 of the Convention on the Rights of Persons with Disabilities. Among them, Article 6 to Article 8 of the ICESCR, which has also been ratified by China, is recognized as the most comprehensive provision on the right to work.28
 
In general, the right to work should be understood as the “right to decent work”. As a right protected by international human rights laws, it can be understood from both narrow and broad perspectives. 
 
In a narrow sense, the right to work mainly refers to the content of Article 6 of the ICESCR, that is, any individual shall have the right to obtain a job, freely choose a job and maintain the right to work. The following factors are usually included: the right to be employed (there are enough jobs in the labor market, and the state promotes full employment); the right to equal employment (freedom from employment discrimination); the right to choose one’s career freely (freedom from forced labor and freedom to leave and change jobs); the right to employment services and training; the right to employment security (freedom from arbitrary dismissal and freedom to enjoy stable employment). It should be emphasized that the right to work is not limited to the right to employment. Work is a concept broader than employment. According to the wording of Article 6 of the ICESCR, the right to work “includes the right of everyone to the opportunity to gain his living by work”. The “opportunity to gain his living by work” actually means gainful employment. The word “includes” indicates that the concept of the right to work is not limited to the right to employment. “Work” here covers all forms of work, including independent work and dependent wage-paid work.29 Obviously, the “work” in the right to work also includes the so-called “informal” employment, which can completely cover all kinds of jobs that workers are engaged in within today’s gig economy.
 
The right to work in a broad sense further includes Articles 7 and 8 of the ICESCR, namely just and favorable working conditions and trade union rights. Specifically, Article 7 includes rights in work such as remuneration, safe and healthy working environment, equal promotion opportunities, rest, leisure, reasonable working hours and paid vacation. Article 8 includes the right to form and join trade unions, the right of trade unions to form federations, the right to exercise their functions freely, the right to strike, etc.30 When China ratified the convention, it made an interpretative declaration on Article 8, that is, the application of Paragraph 1 of Article 8 shall conform
to China’s Constitution, Trade Union Law and Labor Law.31
 
The right to social security is also protected by a number of international human rights documents, of which Article 9 of the ICESCR is more detailed. As for the interpretation of the specific standards of social security stipulated in Article 9 of the ICESCR, ILO Convention No. 102 can be taken as a reference.32 Social security is not only limited to employment-related social insurance, but also includes social assistance and welfare established according to needs and supported by the state finance and taxation.
 
It should be emphasized that in international human rights laws, the duty bearers corresponding to the above rights are the states, not the employers, although the states may require the employers to assume corresponding obligations through legislation. For gig workers, the above rights are still applicable, but the state has greater discretion in adopting measures to protect these rights and needs to consider the employment characteristics of the gig economy. For example, the state can provide workers with a safe and healthy working environment through labor legislation, labor supervision and other traditional requirements and supervision platforms, but the state needs to create innovative rules and modes in terms of working hours and social security to protect the rights of gig workers.
 
B. Eight core conventions of the International Labour Organization
 
In 1998, the International Labour Conference adopted the ILO Declaration on Fundamental Principles and Rights at Work, which showed the determination of member states to respect and protect the four fundamental rights at work: freedom of association and the right of collective bargaining, elimination of all forms of forced labor, abolition of child labor and elimination of discrimination in employment. The conference has also determined eight core conventions to protect these fundamental rights: Convention No. 29 Forced Labour Convention (1930) and Convention No. 105 Abolition of Forced Labour Convention (1957), Convention No. 87 Convention Concerning Freedom of Association and Protection of the Right to Organise (1948) and Convention No. 98 Right to Organise and Collective Bargaining Convention (1949), Convention No. 100 Equal Remuneration Convention (1951) and Convention No. 111 Discrimination (Employment and Occupation) Convention (1958), Convention No.138 Minimum Age Convention and Convention No. 182 Worst Forms of Child Labour Convention (1999).33
 
These eight conventions are also called the ILO Conventions on Human Rights. China has ratified four of these conventions, namely, Conventions Nos. 100, 111, 138 and 182, which protect equal employment and child labor.34 China has not yet ratified the other four conventions possibly because it does not accept the specific standards set by the ILO. However, China has recognized these two basic rights by ratifying the protection of freedom from forced labor and freedom to trade union rights in the ICESCR. These rights are applicable to all gig workers.
 
IV. Main Content of the Social Rights for the “Third Kind of Workers” in Gig Economy
 
A. Classification of the “third kind of workers”: from “subordination” to “dependency” standards
 
To sum up, China can also classify gig workers in a ternary way and respectively protect them according to their type of work. This way can provide reasonable guarantee for the workers in the gig economy according to their own situations.
 
According to the independent worker theory, gig workers can be classified according to the following elements: (1) The continuity in providing labor; (2) the economic dependence of the workers on their employers; (3) the intensity of supervision of the workers by the employers; (4) the importance of the workers to the organizations. The reason for selecting these four elements is that they can comprehensively reflect the subordinate attributes of the workers; whether organizational or economic, strong or weak, their subordinate attributes can be judged with these four elements. In other words, the classification of the new-type workers depends on the strength or absence of some of these four elements.
 
For the new-type workers who have been serving the platforms on a part-time basis for a long time, the degree of continuity of the labor they provide is relatively low, their economic dependence on the employers is not high, they are subject to a certain degree of supervision by employers and do not belong to an important part of the organizations. This type of workers should be classified as “flexible employees” and protected by civil laws.
 
For the new-type workers who have been serving platforms for a long time on a fixed basis, there is a high degree of continuity in providing labor. The workers rely on the income obtained from the platforms as their major means to make a living, so they have a strong dependence on the platforms, while the workers who have been providing labor for a long time are subject to higher frequency and higher intensity of supervision by employers. These workers who provide long-term labor for the platforms have become an indispensable part of the operation of the platforms, so these new-type workers should be classified as “employees” and they should enjoy the protection given to traditional employees by the labor laws. Other workers with strong economic subordination but weak organizational subordination or strong organizational subordination but weak economic subordination can be classified as the “third kind of workers” to be protected.
 
B. List of rights to be protected for “the third kind of workers”
 
China’s current labor law excludes the “third kind of workers”, so the legal sources of the list of rights of such workers mainly come from the constitution and international laws. It is stipulated in Article 42 of China’s Constitution that: “Citizens of the People’s Republic of China have the right as well as the duty to work. Using various channels, the state creates conditions for employment, strengthens labor protection, improves working conditions and, on the basis of expanded production, increases remuneration for work and social benefits.” It is stipulated in Article 33 of the revised Constitution in 2004 that: “The State respects and preserves human rights.” China has ratified a number of international human rights conventions, which means that China recognizes its obligations under international laws to the rights protected by these conventions. Domestic laws should reflect and conform to the human rights treaties that China has acceded to. In particular, a constitution that protects fundamental rights, even if it cannot be completely the same as the contents of the treaties, including all treaty rights, should at least be able to make an interpretation that is in line with the treaties.35 Therefore, even if Article 33 of the Constitution cannot be interpreted as the rights contained in these human rights conventions but not listed in the constitution, it can at least interpret Article 42 in accordance with Article 6 to Article 8 of the ICESCR and the core conventions of the ILO.
 
The rights in Article 42 of the Constitution are not limited to the narrow definition of “workers” protected by the labor law. Therefore, the “third kind of workers” should also enjoy the basic rights protected by Article 42 of the Constitution, but the specific content of the rights and their means of realization should conform to the characteristics and objective conditions of this kind of workers.
 
1. Right to social security
 
The lack of employment-related social security is one of the major difficulties faced by the “third kind of workers” in the gig economy. As stated in the “independent worker” theory put forward by US scholars, workers of the “intermediate type” need protection methods suitable for their particularity. From the perspective of human rights, the right to social security in international laws requires the state to provide social security for all workers to resist the risks of unemployment, injury, aging, etc.,which of course also includes the “third kind of workers” in the gig economy. However, the duty subject of the right to social security as a human right is the state, not the employers. From this point of view, the state can completely create a social security mechanism suitable for the professional characteristics of the “third kind of workers” in the gig economy. This paper holds that, in combination with China’s current social security system and the requirement to protect the basic rights of workers, China can adopt a diversified social security model that combines compulsory insurance and voluntary insurance and flexibly adjusts the contribution ratio to protect such workers in the gig economy. The goal of this mode should be to help independent workers resist social risks, while the employers should bear their own share.
 
According to China’s Social Insurance Law, in addition to compulsory insurance for employees, flexible employees can participate in social insurance through voluntary contributions.36 The “third kind of workers” have weaker dependency than employees and may switch among multiple platforms. It is obviously inappropriate to require a certain platform to pay all social insurance according to the status of the employees. On the contrary, although such workers have a certain degree of flexibility, their working place, working hours, etc. are often strictly controlled by the platforms (e.g. delivery men of the platforms), thus making workers pay for the whole social security
as flexible employees do is obviously unfair. The reason is that if the platforms do not have to bear any expenses, such as work-related injury insurance, then they are even less motivated to protect the occupational health and safety of the workers. This is also an inevitable requirement of the social contract theory in the workplace.37
 
In view of the diversity of China’s social security system and the corresponding social security costs, the willingness of gig workers to participate in insurance may not be uniform. Therefore, in protecting the social security rights of workers, it is also necessary to respect the right of workers to choose, taking into account the characteristics of the posts and the needs of sustainable development of the platforms. For example, the state can force the platforms to provide work-related injury insurance for the “third kind of workers”, but other types of insurance can be decided through collective negotiation between the platforms and the workers. Such an approach does not require a fundamental reform of the current social security system or the creation of new types of insurance, but allows sufficient flexibility in the implementation, and no longer forces the participation in insurance or leaves it alone according to the binary classification of the labor law.
 
As for the proportion of social insurance contributions, some scholars believe that paying part of social insurance should be regarded as the price for “independent workers” to enjoy a higher degree of autonomy.38 This paper holds that in collective negotiation, the platforms can negotiate with the workers about their respective contribution rates, which is also an embodiment of the option of the “third kind of workers” to social security.
 
2. Right to join trade unions and right of collective bargaining
 
Different from workers in the traditional economy, the “third kind of workers” in the gig economy are scattered and basically have no bargaining power in terms of working conditions, remuneration, etc. It is also difficult for individuals to negotiate or mediate with the platforms in case of disputes. However, the litigation costs are of course very high for workers, and it is also time-consuming, inefficient and risky for the platforms to respond to lawsuits. Therefore, the “independent worker” theory put forward by US scholars suggests giving gig workers the right to organize and bargain collectively as trade unions. In the aforementioned Uber case, Uber drivers also gained the right to set up a committee to negotiate with the company.39
 
China’s gig workers are facing the same dilemma. According to China’s practical economic, social and legal conditions, the best way to realize this right is to be guided and promoted by the All-China Federation of Trade Unions, with trade unions at all levels organizing independent workers to hold collective negotiations with the platforms. Judging from the requirements of international laws, trade union right is an important procedural and instrumental right to realize the right to work and a basic human right. When China ratified the ICESCR, it made an explanatory statement on the trade union right in Article 8 of the Covenant, pointing out that this right should be implemented within the legal framework of China. That is to say, the implementation of this right must conform to the provisions of the labor law of China on trade unions and the trade union law. Judging from China’s domestic laws, China’s Trade Union Law does not take “forming labor relations with employers” as an element of trade union qualifications. Any worker “taking wage income as the main source of livelihood” can join a trade union.40 According to Article 3 of the Trade Union Law of China, the subjects enjoying the rights to join and organize a trade union is “manual workers and mental workers whose main source of livelihood is wage income”. The qualification of trade union members is not tied to labor relations, which is also the legal basis for gig workers to join trade unions. 
 
It is obviously that the Trade Union Law provides legal support for the “third kind of workers” in the gig economy. In reality, local trade unions have also implementedprotection for such workers. For example, in 2019, a trade union was set up in Guangzhou for instant delivery riders. 350 delivery riders of Ele.me became the first members.41 Members of the trade unions can enjoy skills training, mutual medical assistance, hospitalization care and legal aid provided by the trade unions. In 2017, Zhejiang Province established the “Chemaxiang” Trade Union, with truck drivers as its main members.42 These truck drivers can register with the trade union through a smart phone app or WeChat official account without any barriers. The trade union provides legal, financial and emergency rescue assistance services, as well as medical examination and health consultation services for the drivers. These trade unions set no qualifications for traditional labor relations; furthermore, they take advantage of the online platforms to provide protection for the rights and interests of the workers. It can be seen that allowing the “third kind of workers” of the gig economy to join trade unions and negotiate with platforms under the leadership of the trade unions not only has theoretical and legal basis, but it is also practical and feasible.
 
3. Fair and favorable conditions of work
 
Every worker should enjoy the basic right to fair and favorable conditions of work. However, it is difficult for the “third kind of workers” in the gig economy to enjoy a safe and healthy working environment, reasonable working hours, paid vacation, fair remuneration, etc. as protected by the labor laws. The main reason is not that the platform’s special employment mode makes it impossible for workers to obtain such protection, but the limitation of the labor laws themselves. From the perspective of the national obligation of human rights, the state has the obligation to ensure that gig workers can enjoy fair and favorable conditions of work by formulating special laws or promoting collective consultation and other measures. Of course, national implementation measures need to be adjusted according to different rights. For example, a safe and healthy working environment should be provided by a platform for all workers serving it, regardless of the legal relationship between the workers and the platform or whether they switch between different platforms. From the perspective of the benefits of the platforms, providing reasonable labor safety protection for workers can help them gain the trust of workers and a better social reputation, which is also beneficial to the long-term development of the platforms. For example, a food delivery platform can provide regular safety training for its delivery people to help them check the safety of food delivery tools, etc. Even if the delivery people serve multiple platforms at the same time, the laws can still require all platforms to provide such training and inspection, which is not technically difficult to achieve. For substantial standards of safety and health, reference can be made to the existing relevant laws, such as the relevant provisions of the Law of the People’s Republic of China on Work Safety, the Law of the People’s Republic of China on the Prevention and Control of Occupational Diseases and the Labor Law of the People’s Republic of China. In view of the high frequency of traffic violations and even traffic accidents caused by heavy workload and tight schedules of gig workers such as delivery men and drivers, platforms should establish a scientific labor safety mechanism, for example, setting a wide range of delivery orders during rush hours to indirectly protect the safe practice environment of the “third kind of workers”. As for reasonable working hours, paid holidays, fair remuneration, etc., corresponding arrangements can be made by law according to the degree of subordination of the “third kind of workers” and the degree of continuity of work. Modes which are more flexible and more in line with the characteristics of different platforms can promote collective negotiation between workers and platforms. After all, workers know their own needs best, while platforms know the needs of the industry best. For these specific ways for the enforcement of the rights, the state should get rid of the paternalistic legislative way of thinking, avoid monopolization, adopt the concept of “participatory democracy” more, respect the will of the workers, actively give play to the role of trade unions, especially guilds, and promote collective consultation. 
 
4. Anti-discrimination guarantee
 
The right to equal employment is a basic human right and a basic right that gig workers in China should enjoy. The basis for the theory of independent workers in the United States to propose anti-discrimination protection is US Civil Rights Act and other domestic laws. That China’s gig workers should enjoy the right to equal employment is based on China’s Constitution and other anti-discrimination laws, including international laws.43 It is stipulated in Article 3 of the Employment Promotion Law of 2007 that: “Laborers shall have the right to equal employment and to choose jobs on their own initiative in accordance with law. The laborers seeking employment shall not be subject to discrimination on the basis of ethnicity, race, gender, religious belief, etc.” Chapter III of the law contains more specific provisions on discrimination in employment. According to the interpretation of the text and the relevant judicial practice, the workers here are obviously not limited to those who have established labor relations with the employers because if they encounter employment discrimination during the job-seeking stage, they can also invoke these clauses to seek judicial relief. From this reasoning, the anti-discrimination clause can also be applied to the “third kind of workers” in the gig economy. On December 12, 2018, the Supreme People’s Court issued a document adding two new causes of discrimination in employment: one is the right to equal employment under the right of personality and the other is sexual harassment under tort liability.44 This is an important progress in the field of China’s procedural laws of anti-employment discrimination. However, there are still many issues to be clarified in substantive laws, such as what exactly is employment discrimination, whether sexual harassment in the workplace constitutes employment discrimination, and what responsibilities employers should assume. There are still many problems in procedural laws, such as whether the burden of proof can be reversed. The “third kind of workers” of the gig economy should enjoy the protection of China’s anti-employment discrimination law, but China’s anti-employment discrimination law is still lagging behind, and the independent workers of the gig economy should be given due protection and relief through legislation.
 
V. Conclusion
 
The sharing economy, as a social and economic phenomenon, has its positive significance in, for instance, creating employment and providing convenience for consumers. It is the product of the development of science and technology and market economy to a certain stage. However, if it is allowed to develop out of order, evade its social responsibilities and legal obligations, and exploit workers, it will also cause new social injustice and pose a threat to social stability. In this regard, the state needs to find an intermediate way that can protect the legitimate rights and interests of workers without unduly increasing the burden on platforms. 
 
The gig economy and the like have greatly changed the form of employment. The dualism of employees/non-employees (or labor relations/non-labor relations) in the traditional labor laws has not adapted to the changed employment market. It has excluded a large number of workers from the stricter protection system of the traditional labor laws, preventing them from fully enjoying the basic human rights of workers, such as equal employment, fair and favorable conditions of work, trade union rights and social security rights.45 Therefore, it is imperative to break through the existing dual legal framework and find new legal rules. This paper, referring to the theory of “independent workers” in the U.S. and in combination with the current social, economic and legal situations in China, proposes a way to protect workers in the gig economy by mainly protecting social rights, divides them into three categories,shifts the criteria for judging labor relations from “subordination” to “dependency”, and offer special protection suitable for the working characteristics of the “third kind of workers” exceeding the traditional binary framework.
 
When choosing the regulation mode, the neo-liberal economic concepts that the United States and other countries believe in are obviously not suitable for socialist countries like China. China’s legislators should fully respect the will and autonomy of the workers, promote collective consultation, actively give play to the role of trade unions, especially guilds, and formulate workers’ protection standards through the tripartite cooperation mechanism among the government, the platforms and the workers.
 
(Translated by MA Ke)
 
* LU Haina ( 陆海娜 ), Associate Professor of Renmin University of China Law School, Secretary General of the Center for Human Rights Studies, Renmin University of China, Doctor of Law. This paper is a phased outcome of the project under the Research Fund of Renmin University of China (Project No: 20XNQ009).
 
** CHEN Yiheng ( 陈以恒 ), Legal Assistant of Beijing V&T Law Firm.
 
1. State Information Center, Annual Report on the Development of China’s Sharing Economy (2018), accessed January 5, 2019, http://ex.cssn.cn/jjjxj_bg/201802/t20180228_3861544.shtml.
 
2. Ibid.
 
3. There are two situations: some gig workers, such as full-time drivers of ride-hailing platforms, can be included in the labor relations protection according to China’s labor law, but the platforms evade supervision and do not
sign labor contracts; the other workers are those who cannot be classified into labor relations according to the current labor law due to the nature of their employment, such as drivers of Didi Express.
 
4. Xie Zengyi, “Identification of Labor Relations in the Employment of Internet Platforms”, Peking University Law Journal 6 (2018); Wang Tianyu, “Is Online Labor Service a Challenge to Labor Laws”, China Law Review 6 (2018); Tian Silu, “Subordinate Labor Theory in the Era of Industry 4.0”, Law Review 1 (2019); Peng Qianwen and Cao Dayou, “Labor Relations or Service Relations? — On the Employment Relationship of Online Ride-Hailing Platforms in China with Didi as an Example”, Human Resources Development of China 2 (2016); Hou Denghua, “Legal Status of Online Platform in the Sharing Economy”, Tribune of Political Science and Law 35 (2017); Lu Yin and Li Shengnan, “The Challenge of Sharing Economic Model to Traditional Labor Relations — Some Lessons from the Reconciliation of the UBER Case in the U.S.”, Labor Relation 1 (2016); Jin Chao, “Research on Employment Disputes in Online Ride-Hailing Industry from the Perspective of Labor Relations”, Journal of China University of Labor Relations 2 (2018).
 
5. Wang Quanxing and Wang Qian, “Identification of Labor Relations and Protection of Rights and Interests for Chinese ‘Online Gig Workers’”, Law Science 4 (2018).
 
6. Ding Xiaodong, “New Ideas on Platform Revolution, Gig Economy and Labor Law”, Global Law Review 4 (2018).
 
7. Xiao Zhu, “Theoretical Reflection and Alternative Path of the Third Kind of Workers”, Global Law Review 6 (2018).
 
8. Seth D. Harris and Alan B. Krueger, “A Proposal for Modernizing Labor Laws for Twenty First Century Work: The ‘Independent Worker’”, Discussion Paper 2015-10 (The Hamilton Project-Brookings Inst. December 2015).
 
9. Seth. D. Harris, “Workers, Protections, and Benefits in the U.S. ‘Gig Economy’”, Global Law Review 4 (2018): 34.
 
10. Seth D. Harris and Alan B. Krueger, “A Proposal for Modernizing Labor Laws for Twenty First Century Work”, 25.
 
11. Ibid.
 
12. Report of the International Labor Office, Social Contract and the Future of Work: Inequality, Income Security, Labor Relations and Social Dialogue, 2.
 
13. National Labor Relations Act, 29 U.S. C. § 151 et seq. (2018).
 
14. Sherman Antitrust Act (Sherman Act) (15 U.S.C. § 1).
 
15. Seth D. Harris and Alan B. Krueger, “A Proposal for Modernizing Labor Laws for Twenty First Century Work”, 16.
 
16. 42 U.S. C.A. δ 2000e et seq.
 
17. Seth D. Harris & Alan B. Krueger, “A Proposal for Modernizing Labor Laws for Twenty First Century Work”, 18.
 
18. Fair Labor Standards Act (FLSA), 26 U. S. C.43 δ 4980H: Regular Hours. Under the Fair Labor Standards Act, regular hours are those up to 40 for the workweek, which is a recurring period of seven straight days. According to the US Department of Labor, the FLSA does not restrict the number of hours that employees age 16 and over may work in a day or week.
 
19. Warner Mark, “Asking Tough Questions about the Gig Economy”, Washington Post, June 18, 2018.
 
20. Seth D. Harris & Alan B. Krueger, “A Proposal for Modernizing Labor Laws for Twenty First Century Work”, 23.
 
21. Robert Sprague, “Worker (Mis) Classification in the Sharing Economy: Square Pegs Trying to Fit in Round Holes”, ABA Journal of Labor & Employment Law 1 (2015): 53.
 
22. Kate Andrias, “Responses Confronting Power in Public Law”, Harvard Law Review 130 (2016): 8.
 
23. Douglas O’Connor, et al, vs. Uber Technologies, Inc, et al, Case No. 13-cv-03826-EMC., Docket No. 357 (2015).
 
24. Warner Mark, “Asking Tough Questions about the Gig Economy”.
 
25. Orly Lobel, “Sharing Economy Supervision: Autonomy, Efficiency and Value”, Global Law Review 4 (2018): 51.
 
26. Antonio Aloisi, “Commoditized Workers: Case Study Research on Labor Law Issues Arising from a Set of ‘On-demand/ gig economy’ Platforms”, Comparative Labor Law & Policy Journal 37 (2016): 653.
 
27. Cotter v. Lyft, No. 13-cv-04065-VC, (N. D. Cal. March 11, 2015).
 
28. CESCR Committee, General Comment No.18: The Right to Work (Art. 6), E/C.12/GC/18, February 6, 2006, para. 1.
 
29. CESCR Committee, General Comment No. 18, para. 6.
 
30. For specific explanation of contents of rights, see Ben Saul, David Kinley and Jacqueline Mowbray, Commentaries, Cases and Information of the International Covenant on Economic, Social and Cultural Rights, trans. Sun Shiyan (Beijing: Law Press, 2019), 335-520.
 
31. Ben Saul et al, Commentaries, Cases and Information of the International Covenant on Economic, Social and Cultural Rights, 520.
 
32. Ibid., 530-535.
 
33. International Labour Organization, “Eights Fundamental Conventions”, accessed December 6, 2019, http://libguides.ilo.org/c.php?g=657806&p=4649148.
 
34. International Labour Organization, Countries-China, accessed December 6, 2019, https://www.ilo.org/gateway/faces/home/ctryHome?locale=EN&countryCode=CHN&_adf.ctrl-state=1bm72cvki_9.
 
35. Lu Haina, “On the Protection of Refugees’ Right to Work in China from the Perspective of International Laws”, The Journal of Jiangsu Administration Institute 4 (2015).
 
36. Articles 10, 23, 33, 44 and 53 of the Social Insurance Law of China.
 
37. John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remarking of American Law, trans. Tian Lei (Shanghai: Shanghai Joint Publishing Company, 2008), 40.
 
38. Zhang Yan, “Analysis of Work-related Injury Insurance System for Flexible Employment Personnel in Sharing Economy — from the Perspective of Gig Workers”, Journal of Jilin Business and Technology College 6 (2018): 93.
 
39. Douglas O’Connor, et al, vs. Uber Technologies, Inc, et al, Case No. 13-cv-03826-EMC., Docket No. 357 (2015).
 
40. Wang Quanxing and Wang Qian, “Identification of Labor Relations and Protection of Rights and Interests for Chinese ‘Online Gig Workers’”, 72.
 
41. “350 Delivery Riders Join Guangzhou’s First Trade Union of Instant Delivery”, accessed December3, 2019, http://www.gdftu.org.cn/xw/dt/201901/t20190111_985815.htm.
 
42. Zhejiang Province “Chemaxiang” Trade Union, accessed December 3, 2019, http://www.965656.com.cn/.
 
43. Lu Haina, China’s International Protection of Equal Employment Right — from the Perspective of International Laws (Beijing: Law Press, 2015).
 
44. Notice by the Supreme People’s Court of Adding More Causes of Action in Civil Cases (Law (2018) No.344), accessed December 3, 2019, http://www.faxin.cn/lib/Zyfl/ZyflContent.aspx?gid=A272294&userinput=%E5%B0%B1%E4%B8%9A%E5%B9%B3%E7%AD%89%E6%9D%83%E6%A1%88%E7%94%B1.
 
45. Xie Zengyi, “Transformation in the Adjustment Mode of China’s Labor Relations Laws”, Social Sciences in China 2 (2017).
 

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