Classification under employment law of crowdworkers in the case of control methods typical for employees
Clicking on an internet platform to get work assignments
The case that the court had to rule on related to crowdworker C, who had made the claim, and the defendant crowdsourcing company; the two parties had concluded a basic agreement together with supplementary GT&Cs. C thus obtained access to work assignments on an internet platform in the form of an app installed on his mobile phone. On the work assignment platform C was able to take on work assignments with a simple click. His work consisted in carrying out checks on merchandise presentation at retail outlets and petrol stations. There was no agreement in respect of the volume of work assignments and nor was C under any obligation to take on specific work assignments. In the space of 11 months, he thus took on approximately 3,000 work assignments and for 20 hours of work per week he generated on average € 1,750 per month. After some inconsistencies, the company terminated the collaboration with the crowdworker whereupon the latter launched legal action over unfair dismissal.
Previous case-law – crowdworkers are not bound by any instructions
According to the case-law, crowdworkers had not had employee status up to now since, in each case, they had been able to decide by themselves whether or not to work for a crowdsourcing platform. This was likewise the assessment of both of the lower courts (Munich Labour Court, ruling from 20.2.2019, case reference: 19 Ca 6915/18; Munich Regional Labour Court, ruling from 4.12.2019, case reference: 8 Sa 146/19), namely, that C should not be regarded as an employee. According to the courts, the basic agreement did not meet the requirements for an employment contract since it was not possible to infer from the agreement that C was obliged to perform any services. Therefore, the claimant was neither bound by any instructions nor integrated into the defendant’s operational processes. Accordingly, employee status should not be presumed.
BAG – Crowdworkers as employees
However, in its ruling from 1.12.2020 (case reference: 9 AZR 102/20), the BAG now assumed that there was an employment relationship in accordance with Section 611a of the Civil Code (Bürgerliches Gesetzbuch, BGB) since the crowdsourcing company steered the collaboration via the online work assignment platform, which it operated, in such a way that the worker was not able to freely organise his work in terms of its place, time and content. For the BAG, it was not relevant here whether or not the person concerned was contractually obliged to accept the offers of work. The decisive factor was the organisational structure of the work assignment platform. According to this, it was only possible for the users to move up to a higher level in the rating system once they had increased the number of assignments performed by completing several assignments on one single route; consequently, they would, in effect, be able to generate a higher hourly wage.
Through this incentive system the worker was induced to carry out inspections continuously; therefore, according to the BAG, in such cases, crowdworkers should be regarded as employees. Nevertheless, the BAG rejected C’s complaint because by cancelling the contract as a precautionary measure the crowdsourcing company had effectively terminated the employment relationship.
Please note: In this case it was still possible to resolve the structure for issuing instructions on the basis of the current 611a BGB. At the same time, the court did not bring the debate about statutory provisions to an end but rather opened it up further – especially taking into consideration the evidentiary problems of workers in less transparent cases.