Focus on determination of employment status and algo­rithmic manage­ment.

On the morning of 13 December, the negotiators from the European Parliament and the Council reached a provisional agreement on a draft law to improve working conditions in platform work. The aim of the draft law is to ensure the correct determination of the employment status of platform workers. This is intended to ensure that platform workers who were previously incorrectly classified as self-employed are socially protected and that they are subject to the same occupational health and safety rights as employees outside of digital work platforms. In addition, a few days after the provisional agreement on the AI Act, binding rules for algorithmic management and the use of artificial intelligence in the workplace will be laid down for the first time.

Determination of employment status

In the original Commission Draft, the actual employment status for the rebuttable presumption was to be examined on the basis of five criteria. The presumption should then be triggered if two of the five criteria are met. In its position, the Council formulated seven criteria, three of which had to be fulfilled. However, the Parliament has spoken out against EU-wide binding criteria, but has listed eight non-exhaustive aspects. These must be taken into account in addition to the case law of the European Court of Justice (ECJ), national regulations and legal provisions when determining employment status.

The agreement no longer refers to criteria, but to five indicators based on the case law of the European Court of Justice. The rebuttable presumption is triggered if at least two indicators are present. The indicators do not lead to a direct reclassification, but initiate a review. It was also agreed that the Member States can expand the list of indicators.

The presumption can be triggered by the platform worker, his or her representatives and the competent authorities on their own initiative. This presumption can be rebutted if the digital work platform proves that the contractual relationship is not an employment contract.

Transparency

Currently, platform workers do not have access to information on how the algorithms work and how their behaviour affects the decisions made by the automated systems. With the new regulations, the digital work platforms will make this information available to employees and their representatives.

Algorithmic management and the use of artificial intelligence

The new regulations will prohibit digital work platforms from making decisions such as dismissals or blocking an account without human supervision. The provisional agreement also provides for greater human oversight of the decisions of systems that directly affect platform workers.

Furthermore, digital work platforms will be required to assess the impact of decisions based on automated monitoring and decision-making systems on working conditions, health and safety and fundamental rights.

Personal data

According to the provisional agreement, digital work platforms are prohibited from processing certain personal data. This includes, for example, information on personal beliefs or attendance at work. The digital work platforms are also to be obliged to provide the competent national authorities and the representatives of the platform workers with information on the self-employed persons they employ.

What happens next

The provisional agreement must now be formally adopted by the European Parliament and the Council. After the official announcement, the Member States will then have two years to transpose it into national law.