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GLOBAL ANTITRUST REVIEW

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102 of the independent

102 of the independent contractors. This question was raised in multiple lawsuits 133 , out of which the one involving Uber hauled the most interest. Even though the US Labor Commission in California ruled that an Uber driver was an employee and not an independent contractor in 2015 134 , it is yet to be seen how the ongoing appeal process will culminate. The confirmation of such a finding would have as an advantage a better security for Uber drivers, as they would enjoy worker benefits such as wage protection, unemployment and health benefits. 135 On the other hand, that could be detrimental for Uber’s concept of the sharing economy and it would put it outside of the definition of the sharing economy used in this paper. The main argument why Uber drivers should not be regarded as employees is due to the platform’s limited intermediary role 136 and the fact that drivers are free to set their own working hours. Those opposing such argument claim that Uber sets “most of the terms of employment, and is involved from vetting of drivers through to terminating them if they have low ratings” 137 , arguing that such a policy de facto contributes to the company’s status of an employer. 138 On the other hand, Professor Robert Sprague holds that “the nature of work exemplified by the sharing economy requires a classification test that focuses not on the dependence of the workers on the employer, but the dependence of the employer on the workers.” 139 Hence, the freedom that workers enjoy in providing individualised tasks and services can be seen as a form of an existential dependence of the platform operator to these workers, and not the other way around. Ultimately, it is up to the courts to determine how far independent contracting can be strained, while the results might not be identical in every jurisdiction. 133 Katz (n99) 1091. 134 See Barbara Ann Berwick vs. Uber Technologies Inc, Case no. 11-46739 EK, Labor Commission of the State of California, US, June 3, 2015, available at accessed 23 July 2016 135 For summary of the arguments and legal decisions in cases involving Uber in front of US authorities, including the ongoing class actions, see accessed 23 July 2016. 136 Rashmi Dyal-Chand, Regulating Sharing: The Sharing Economy as an Alternative Capitalist System (December 2015) 90(2) Tulane Law Review 241, 263. 137 Deloitte Access Economics (n29) 15. 138 Dyal-Chand (n136) 263. 139 Robert Sprague, Worker (Mis)Classification in the Sharing Economy: Trying to Fit Square Pegs in Round Holes (2015) 31 A.B.A. Journal of Labor & Employment Law 53, 76.

103 Even if Uber drivers were regarded as Uber’s employees, the same finding could not be universally applied to other sharing economy businesses. It appears that Uber imposes restrictions to its drivers because that is inevitable to be able to comply with a heavily regulated traditional taxi markets regulations. However, if Uber would operate on the same way as traditional taxi operators do (with the only difference in having a modern online algorithm running the platform), it should be abiding by the same set of rules as the market incumbents – but it does not, for the reasons that follow. In author’s opinion, such finding would be farfetched, since Uber provides an alternative to traditional taxi services, connecting non-professional, part-time drivers with passengers. Therefore, it should be regulated as such, and not pushed under the ‘taxicab’ regulatory framework. 140 Not only that Uber created many new ridesharing markets across the world and lowered the costs of transportation, but it also influenced traditional taxi markets and decreased the level of the competition among them 141 , and for that – it should be applauded, and not punished. Maybe the solution lays in the compromise. Some sharing economy businesses in recent months started to offer their suppliers or providers some form of workers benefits. 142 For example, TaskRabbit started offering access to discounted health insurance and accounting systems. 143 Instacart, a grocery delivery app, asked some of its workers to become part-time employees. 144 Such and similar steps prove that a fair treatment of workers does not necessarily have to twist the sharing economy business model. 145 140 See more Damien Geradin. Should Uber be allowed to Compete in Europe? And if so How? (Forthcoming 2015) Competition Policy International accessed 20 July 2016. 141 Scott Wallsten, The Competitive Effects of the Sharing Economy: How is Uber Changing Taxis? (June 2015) Technology Policy Institute, 19 accessed 25 July 2016. 142 See more Antonio Aloisi, Commoditized workers: Case study research on labor law issues arising from a set of „on-demand/gig economy“ platforms (2016) 37 Comparative Labor Law & Policy Journal 653. 143 See more TaskRabbit Perks, accessed 27 July 2016. 144 See more Brad Stone, Instacart Reclassifies Part of Its Workforce Amid Regulatory Pressure on Uber, Bloomberg Technology (22 June 2015) accessed 27 July 2016. 145 Aloisi (n142) 684.

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