“A skilled crowd. Anytime, anywhere.”
“A skilled crowd. Anytime, anywhere,” is the slogan that crowd-sourcing platform company Roamler uses to advertise its services. Roamler is a company that deploys secret shoppers to retail outlets to assess whether retailers are appropriately displaying and advertising products in their stores. It advertises its service to potential clients as follows:
“Optimize your in-store execution with crowdsourcing. Powered by a Crowd of thousands of shoppers across Europe, Roamler Retail is your eyes, ears, and hands in every marketplace.”
Roamler is one of a profusion of new platform companies disrupting the labour market by utilizing innovative definitions to describe the people it deploys to do its work. Perhaps the most famous case of a platform company refusing to define the people that work for it as employees is Uber, which refers to its drivers as “independent contractors”. These innovative definitions are proving to be a major problem because they signal structural changes in the relationship between employers and employees, while simultaneously diminishing workers’ rights. As such there have been multiple cases brought against Uber globally to get Uber to recognise its drivers as employees, including in South Africa, so that they can be protected by labour legislation.
Similarly, a case was brought against Roamler in Germany by a so-called member of the crowd who was legally represented in the German Federal Labour Court by SALDRU affiliate, Dr Ruediger Helm. Roamler describes its workforce as a skilled crowd available anytime and anywhere. However, on 1 December 2020, the German Federal Labour Court ruled that the performance relationship of a member of the crowd advertised by Roamler is legally to be regarded as an employment relationship, (German Federal Labour Court Bundesarbeitsgericht –, 1 December 2020, case number 9 AZR 102/20).
It is useful to unpack the Roamler Case to understand how the decision regarding the employee status of the ‘crowdworker’ was arrived at because the criteria for the definition of worker are similar in South Africa and Germany. Thus, this decision may have relevance in South Africa too. The highest French court has also recognised the employee status for comparable cases of crowdworker (Cour de Cassation – Chambre sociale n°1737, 28. Nov 2018 [17-20.079])
Not all crowdwork is the same. In order to classify the decision, it is therefore necessary to consider the type of crowdwork assessed by the highest court in the case. Eurofound distinguishes ten main types of crowdwork. The Roamler case was about “On-location platform-determined routine work” or a micro jobber.
|Format of service provision||Scale of tasks||Selector||Form of matching||Platform examples|
|On-location client-determined routine work||On-location||Larger||Client||Offer||Go More (also potentially Airbnb)|
|On-location platform-determined routine work||On-location||Larger||Platform||Offer||Uber and Deliveroo|
|On-location client-determined moderately skilled work||On-location||Larger||Client||Offer||Oferia|
|On-location worker-initiated moderately skilled work||On-location||Larger||Worker||Offer||Listminut|
|Online moderately skilled click work||Online||Micro||Platform||Offer||Crowd-Flower|
|On-location client-determined expert||On-location||Larger||Client||Offer||appJobber|
|On-location platform-determined expert||On-location||Larger||Platform||Offer||Be My Eyes|
|Online platform-determined higher-skilled work||Online||Larger||Platform||Offer||Clickworker|
|Online client-determined specialist work||Online||Larger||Client||Offer||Freelancer|
|Online contestant specialist work||Online||Larger||Client||Contest||99Designs|
Source: Eurofound platform work typology
The plaintiff signed a framework contract pre-formulated by the crowd sourcing platform Roamler on 6 February 2017 to carry out tasks in the company’s retail division. In addition to the framework agreement, general terms and conditions applied. The plaintiff was working for the crowd sourcing platform as a so-called “RoamlerPro” from 4 February 2017 to 10 April 2018 in an undisturbed contractual relationship.
In its retail division, Roamler offers its clients real-time information about product availability, product presentation, product positioning, and store and service quality. The plaintiff is a micro jobber who carried out small jobs (micro tasks) for money. Roamler calls these micro tasks “Tool Checks”. By 10 April 2018, the plaintiff had completed more than 4000 tool checks for the platform in just over 14 months.
The plaintiff worked between 15 and 20 hours per week (excluding on-call times). His average monthly remuneration was € 1,749.34 or R32 330,79 (plus VAT). On 10 April 2018, the Platform deactivated the plaintiff’s account after the latter claimed the incorrect non-payment of EUR 10. He was cut off from his breadwinning activity with immediate effect and could no longer pay the rent for his flat.
Due to the fact that the company saw the claimant as an independent entrepreneur, his employee status was disputed.
The allocation of Tool Checks
It’s worth going through the process that the micro jobber follows to activate a relationship with Roamler, in order to understand how this constitutes an employment relationship.
The micro jobber downloads the Roamler App and allows the app to access the GPS function on his Smartphone. He sets up a Roamler User Account with his personal data and also sets up a Pay Pal account, which he links to the app for payments.
He starts with a training phase at ‘Roamler Level 1’ to learn the work. To do this, he carries out ‘Tool Checks’ free of charge, such as collecting data or taking photos according to Roamler’s specifications, at a location selected by the platform. Once the micro jobber has qualified, he reaches ‘Roamler Level 2’ and is allowed to perform paid jobs. Paid jobs within a 50 km radius from his current location will then be visible via the app.
On the app, the plaintiff was able to click on specified retail premises, which he could visit within two hours to perform a micro job. The plaintiff followed step-by-step instructions on his smartphone to perform his work in designated retail premises. In the shop he would collect specific data and take indicated nominated photos.
This is an example of a tool check the claimant often exercised:
|(1) Are you over 18 years old and willing to be exposed to tobacco / cigarettes during this check?
|(2) Please confirm that you have read and understood the rules of conduct and will abide by them when placing an order.
↗ Yes, I have read and understood the rules of conduct.
|(3) Did you get permission to do this check?
|(4) What kind of advertising (neon sign on top) is the FMC counter tool equipped with?
↗ myblu e-cigarette.
|(5) Which products are placed at the bottom of the presentation area of the FMC counter tool?
|(6) Is the FMC counter tool placed near the cash desk?
|(7) Please take a photo of the FMC counter tool so that the advertisement (neon sign) and the products placed in it and whether it is placed near the cash desk can be seen. No FMC counter tool available? Then please take an overview photo of the service counter / checkout area and the area in front of the windows so that the defendant can see that there really is no FMC tool placed. If you can’t get everything on this photo, you can take another photo right away to photograph the rest of the counter and window area.
|(8) If necessary, you can take another photo here. One of the photos must show where the tool is located! If the tool is not available, the complete counter and the area in front of the windows must be visible on your 2 photos, so that the defendant can understand.
|(9) Take a picture of the LCD screens so that you can see which clip is playing. It is best to take a still picture so that you can clearly see which product the clip is for. If several clips are running, you can take up to 4 photos. Make sure that you hold on to all clips that are running on the screens. If no clip is running, please take an overview photo of the area behind the counter / tobacco products. We will ask you to take at least a second photo.
|(10) If several clips are running, please take a picture of the next clip running on the LCD screens now. Make sure that you keep all clips running on the screens on serve photos. You can take another photo right away. No LCD screens or no other clips? Then please take an overview photo of the service counter / cash desk area so that the tobacco products can also be seen.
|(11) If necessary, you can now take a third photo of another clip on the LCD screens. Make sure that you keep all the clips running on the screens on your photos (optional).
|(12) Which clip, which clips run on the screens? Name all clips that are running on the screens.
↗ myblue e-cigarette, IQOS / Heets
|(13) Did the staff mention during your check that a visit by the Reemtsma field service or telephone contact is desired? Important: Please do not ask, but only tick yes if the staff at the petrol station said something on their own initiative.
|(14) Please take a horizontal overview photo of the petrol station from the outside so that the name can be recognised.
A job has to be completed and uploaded within a period of two hours, otherwise it will be offered again on the app. The Roamler Level determines how many paid jobs can be booked simultaneously. Following this, micro jobbers can plan an initial route. By gradually re-booking according to the two-hour rule, they can organise their working day according to Roamler’s specifications. After Roamler accepts the work order, remuneration is due. The plaintiff worked in this way 4000 times in 14 months.
A digital factory
Roamler produces customised analysis tools for its clients. This includes a dashboard that enables clients to view key performance indicators, a client portal to access location based data and picture, as well as custom reports that provide a complete account of the client’s data.
Roamler can be regarded as a digital factory because its app is the infrastructure that micro jobbers use to carry out small dependent production steps as part of Roamler’s process. As such, the plaintiff is integrated in the production process governed by Roamler. In this regard, Roamler exercises the right of employers to issue instructions telling the micro jobber how, where and when the Tool Check has to be done—by determining the physical or analogue place of work as well as the virtual place of work, which is the digital interface of the virtual factory.
As such, it was argued that the plaintiff is dependent on the virtual place of work through its digital infrastructure (the digital factory), which is necessary for carrying out the work. At the same time, the virtual workplace is assigned, controlled and mastered by Roamler, which controls the micro jobbers (its workforce) by GPS. Thus, the company controls and sanctions its workforce, in the worst case, by deactivating user’s accounts and thus depriving users of their livelihood.
The crucial question in the Roamler case was: Can the fact that the micro jobber picks his work from the Roamler App be an argument against an employment relationship? The German Federal Labour Court ruled: No.
The evaluated type of crowdwork: Microtasking is an employment relationship
On 1 December 2020, the German Federal Labour Court issued a press release, which stated:
“The overall assessment of all circumstances required by law may show that crowdworkers are to be regarded as employees. An employment relationship is deemed to exist if the client controls the cooperation via the online platform operated by him in such a way that the contractor is not free to organise his activities in terms of place, time and content. This is the decisive case. The plaintiff performed work in a manner typical for employees, which was bound by instructions and determined by third parties in personal dependence. It is true that he was not contractually obliged to accept the defendant’s offers. However, the organisational structure of the online platform operated by the defendant was designed to ensure that users registered and trained via an account continuously accepted bundles of simple, step-by-step, contractually specified micro-orders in order to complete them personally. Only a higher level in the evaluation system, which increases with the number of orders carried out, enables the users of the online platform to accept several orders at the same time in order to complete them on one route and thus in effect achieve a higher hourly wage. This incentive system induced the applicant to carry out continuous control activities in the district of his habitual residence.”
The Roamler case sets an important precedent for crowdworkers or gig workers in the platform economy all over the world. The German Federal Labour Court has taken a clear stand against the erosion of labour rights. As judges in courtrooms all over the world with different national laws deliberate on this issue, it is important for a universal perspective on the protection of workers’ rights to take hold globally. This is vitally important because the platform economy is expanding rapidly, and a growing number of people are being forced to turn to it to support their livelihood.