1. Decent Crowdwork Legal strategies towards fair employment conditions in the virtual sweatshop Martin Risak and Johannes Warter Department of Labour Law and Law of Social Security

2. Risak/WarterDecent Crowdwork – legal strategies2 „Remember outsourcing? Sending jobs to India and China is so 2003. The new pool of cheap labor: everyday people using their spare cycles to create content, solve problems, even do corporate R & D.“ „For the last decade or so, companies have been looking overseas, to India or China, for cheap labor. But now it doesn’t matter where the laborers are – they might be down the block, they might be in Indonesia – as long as they are connected to the network.“

3. Risak/WarterDecent Crowdwork – legal strategies3 „The labor isn’t always free, but it costs a lot less than paying traditional employees. It’s not outsourcing; it’s crowdsourcing.“ (Jeff Howe, The Rise of Crowdsourcing, WIRED magazine 10.2006)

4. Risak/WarterDecent Crowdwork – legal strategies4 Overview  What are the main issues for crowdworkers?  Legal questions concerning crowdwork What is the appliccable law? Who are the contractual partners? What kind of legal relationship exists between them? Collective rights: representation and co- determination  Crowdwork as virtual homework?

5. Risak/WarterDecent Crowdwork – legal strategies5 What is crowdwork? A: The process of transferring tasks traditionally performed by employees to a large pool of online workers, the crowd. Plat- form Crowd- sourcer Crowd- worker

6. Risak/WarterDecent Crowdwork – legal strategies6 Issues for crowdworkers Fulltime / part-time crowdworkers  global competition  dislocated physical workplaces  intense virtual control mechanisms  discipline via digital reputation  lack of workers’ organization  oligopoly of a few platforms  legal insecurities  Low remuneration and unfair terms and conditions (t&c)

7. Risak/WarterDecent Crowdwork – legal strategies7 Applicable law  The Problem Physical workplace Virtual workplace Seat of the employer  International private law, e.g. Rome I Regulation Choice of law Default solutions Proctection esp. for consumer and employment contracts  Forum: Where to sue the crowdsourcer/the platform?

8. Risak/WarterDecent Crowdwork – legal strategies8 Contractual Partners Plat- form Crowd- sourcer Crowd- worker Is there a direct contractual relationship? Does the platform act as a broker or on ist own behalf? What kind of contract?

9. Risak/WarterDecent Crowdwork – legal strategies9 Contractual Partners Plat- form Crowd- sourcer Crowd- worker Is there a direct contractual relationship? When is the contract concluded? Right to reject completed tasks (T&Cs)? What kind of contract? Employment contract or contract for services?

10. Risak/WarterDecent Crowdwork – legal strategies10 Employment Relationship?  Contra employment relationship Workers choose when, where and what to work Very short duration of the contract  Pro employment relationship Every task a fixed term contract Tight virtual controls Performance management (reputation system)  „Employee-like status“

11. Risak/WarterDecent Crowdwork – legal strategies11 Contractual Partners Plat- form Crowd- sourcer Crowd- worker Platform is only a broker and acts as an agent for the crowdsourcer Platform is sole contracting partner of the crowdsourcer → crowdworkers are subcontractors of the platform

12. Risak/WarterDecent Crowdwork – legal strategies12 A come-back of the putting-out system?  Similarities Organisational Similar problems Similar causes

13. Risak/WarterDecent Crowdwork – legal strategies13 Crowdwork as virtual home-work Organisational similarities

14. Risak/WarterDecent Crowdwork – legal strategies14 Similar problems and similar causes  Similar problems Social composition of this segment of the workforce Piece wage remuneration Elasticity of the putting-out-system/crowdsourcing of labour Avoidance of labour laws, unions and collective bargaining  Similar causes Lack of solidarity Physical isolation Oversupply of labour („vitual reserve army“)

15. Risak/WarterDecent Crowdwork – legal strategies15 Crowdwork as virtual home-work Conclusions  Application of home-work legislation Per analogiam if scope of application is limited to simple production/packaging tasks Review of exixsting – often outdated - legislation  Home Work Convention 1996 (No. 177 – C177) Only 10 ratifications Wide definition of home-work Promotion of equality of treatment between homeworkers and other wage earners

16. Risak/WarterDecent Crowdwork – legal strategies16 Conclusions  Some problems are old Bogus self employment -> in reality employment contracts Three-person contractual relationships „employee like persons“ and „homeworkers“  Some problems are new The virtual dimension: persons working in two places at the same time -> applicable law and forum The international dimension – global competition with little additional transaction costs but different costs of living

17. Risak/WarterDecent Crowdwork – legal strategies17 Thank you for your attention! Martin Risak and Johannes Warter Department of Labour Law and Law of Social Security University of Vienna Schenkenstrasse 8 – 10, 1010 Wien, AUSTRIA martin.risak@univie.ac.at http://www.univie.ac.at/arbeitsrecht