Crowdworker – Tatsächlich selbstständig oder doch Arbeitnehmer?

January 2021 · Estimated read time: mins

Warum Anbieter der Online-Plattformen ihr Arbeitsmodell überprüfen sollten

Crowdworking as a working model on the rise

By 2020 at the latest, there will be hardly anyone left who has not had some conscious or unconscious contact with the topic of crowdworking. The global Corona pandemic is also multiplying the order volume for food delivery services via website or via an app on the smartphone in this country. With the forced closure of restaurants, many are resorting to having food delivered to their homes. But what, in the eyes of the consumer, is done with just a few clicks after completing the ordering process, poses not inconsiderable problems for both legislators and jurisdiction in connection with so-called crowdworking, a topic that goes far beyond the area of delivery services, which is particularly present in the public eye. In view of the increasing spread of crowdworking, there are currently various efforts to reduce the risks for crowdworkers by strengthening their position and rights.

But how exactly does the crowdworking model work? Work assignments are offered to the broad mass of users (known as the "crowd") via Internet platforms (known as crowdsourcing platforms). The crowdworker accepts these as a platform user and carries them out accordingly. In the event of successful completion/execution of the order, he then receives the remuneration agreed with the operator of the crowdsourcing platform (so-called "crowdsourcer") for this.

Change in case law of the BAG

Up to now, the status of crowd workers as employees has been rejected with reference to a lack of obligation to execute the offered orders. This has recently been countered by case law. In its ruling of December 1, 2020 (9 AZR 102/20), the BAG affirmed the employee status of crowdworkers for the first time. In the underlying case, the court assumed the existence of an externally determined and therefore instruction-dependent activity within the scope of an overall consideration of all circumstances of the individual case, in particular the concrete specifications regarding the execution of the order, and qualified the contractual relationship as an employment relationship. Nevertheless, this decision does not create any legal certainty: Due to the wide range of possible arrangements between the parties involved, it will not be possible to make a blanket assumption of the status of employee in the future either. As is so often the case, it depends on the individual case.

In the specific case, the crowdworker had carried out almost 3,000 orders for the platform as a registered user over a period of eleven months on the basis of a framework agreement with the platform operator. However, there were special features with regard to the concrete design of the execution of an order: On the one hand, the crowdworker had to execute each order within a time window of two hours. On the other hand, the framework agreement provided for the possibility of simultaneous processing of several orders only if a certain number of orders for the crowdworker's user account had been reached beforehand. Only in this way could the next higher level in the evaluation system be reached and further orders be unlocked.

The BAG found that the resulting incentive for the crowdworker to continuously accept as many orders as possible could constitute a dependent activity. The organizational structure of the platform suggests a control of the platform users, so that the plaintiff could no longer freely decide on the acceptance of orders without losing higher earning opportunities. According to the BAG, the lack of an express contractual obligation to act is just as irrelevant as a lack of designation as an employment contract. Only the actual activity, which suggests an integration into the organizational structure of the platform, is decisive.

Planned strengthening of crowdworkers by the legislator

Crowdworking is also to be more strongly regulated by law in the future according to the will of the legislature in order to avoid gaps in protection and to create legal certainty. From the perspective of the legislature, there is a need for action in particular because a clear and reliable demarcation between employees and a self-employed activity is not readily possible due to the small-scale design options.

The aim of the efforts of the Federal Ministry of Labor (BMAS) is in particular to include crowdworkers in the pension insurance. In addition, a reversal of the burden of proof is to take effect in their favor. Accordingly, if there are indications of an employment relationship, the crowdsourcer would be obliged to prove that there is no such relationship.

Risks and consequences for companies

Both the recent ruling of the Federal Labor Court and the efforts of the BMAS pose not inconsiderable risks and uncertainties for entrepreneurs as platform operators. In this context, there is not only the risk of having to retroactively pay social security contributions for a crowdworker who mistakenly does not qualify as an employee. Rather, due to the regularly low remuneration of crowdworkers per executed order, there may also be an obligation to make back payments with regard to remuneration. If it is determined that an employment relationship exists, a customary remuneration is to be paid for the performed activity of the crowdworker pursuant to Section 612 (2) of the German Civil Code (BGB), without a specific remuneration having been explicitly agreed.

Against this backdrop, it is advisable for (potential) platform operators to take a closer look at and review the specifications and regulations existing in their company with regard to the contractual arrangement with crowdworkers in order to avoid unpleasant surprises. This applies all the more as new and more flexible work models such as crowdsourcing will continue to gain in importance in the future in an increasingly modern and digital working world. The clearest possible design of the relationship between crowdsourcer and crowdworker will be essential at the latest when the BMAS's efforts take shape.

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