Analysis On The Legal Status Of Crowdworkers

With the appearance and development of the business model of crowdsourcing,such new kind of method which fully uses the power of the crowd and meets the requirements of production and service has created lots of flexible employment positions.The form of employment is gradually developed from standardization to flexibility and the crowdwork is appeared with the gig economy.It is easy to confuse the concept of crowdwork with on-demand work and outsourcing work,generally the narrow concept of crowdwork refers to the online crowdwork and the on-demand work refers to the offline on-demand work.As a new form of work pattern,due to the characteristic of regional ductility,being conducted online on the whole process,and platform related,both of the personality and economic subordination of crowdwork are weakened.At present,crowdworkers are facing the difficulties of low pay,lack of security of stable work and lack of timely response.From the perspective of the development of the business model,crowdwork is the result of continually refining and outsourcing business units.From the perspective of the legal relationship,crowdwork is a new kind of individual contracting relationship derived from the traditional individual contracting relationship due to the intervention of the third party.Based on the management of completion of tasks and reliance,the foreign crowdwork can be divided into four models: Aggregator,Facilitator,Governor and Arbitrator.The model of Governor is governed and supervised by the platform during the whole process.Based on the method of work completion,crowdwork can be divided into the types of microtasks,competition and project.Comparing to the most typical crowdsourcing platforms in China,these domestic platforms generally show a mixture of the models of types as mentioned above.The legal relationship between the crowdsourcer and the crowdsourcing platform generally constitutes intermediary rather than contracting.The crowdsourcing platform and crowdworker generally have a direct contractual relationship of service and with the strength of control from platform,such kind of relationship may constitute an employment relationship.Whether a crowdworker can constitute an employee still needs to be judged by specific standards within the jurisdiction.In the USA,a Common Law Test is applied for judging the possibility of applicable to the National Labor Relations Act.An Economic Realities Test is applied for judging the possibility of applicable to the Fair Labor Standards Act.Under the existing legal structure of Germany,different standards are applied in the judging of the employee,employee-like person and homeworker.In Japan,the Use-Dependency Test is generally applied for judging the employee under the Labor Standard Law and Labor Collective Law.Crowdworkers are difficult to be regarded as an employee under the existing labor laws and regulations of the three mentioned countries.For those who can't be involved into the protection structure of labor law,each country has carried on the exploration on how to protect such kind of non-standard worker.Now,the difficulties may exist in judging the legal status of the crowdworkers,such as facing the singularity of subordination criteria,simply classified as an independent contractor under the dual system,having difficulty in applying the social insurance for obtaining relevant right protection.Based on perspective of the hidden employment and gray areas,it is suggested to using the “autonomy” for judging the labor relationship,using the “economic subordination” for judging the labor relationship and meanwhile building the protection mechanism shall be regarded as the starting point for breaking through the dilemma of legal status identification.