Identification of workers and protection of their rights in the platform economy: Taking "online delivery clerks" as an example
This paper intends to sort out the provisions of China's current laws and regulations on the protection of workers' rights and interests, and summarizes the particularities of the relationship between platforms and workers in the platform economy. Eventually, puts forward a set of legislative suggestions covering both the identification of workers' status and the protection of their rights and interests. This paper conducts normative analysis, empirical analysis, case analysis and other methods to explore the rights and interests' protection of workers, that are in line with China's national conditions. This paper reveals that in the context of the continuous development of Internet technology and digital economy, platform economy continues to develop and expand, deriving new employment relations. Platform economy not only creates jobs and promotes economic development, but also exposes problems such as disorderly expansion of capital, data security risks and confusion of labor relations. At the same time, in the existing legal system design and judicial practice, there are also some problems, such as outdated system design of labor relationship identification standards, and inconsistent understanding of the employment relationship between online contract delivery personnel and the platform by courts at all levels. In order to construct gradient legal relationship and realize dynamic judicial adjustment, we should distinguish full-time and part-time delivery clerks on the basis of the existing dichotomy system of labor, and explore the path of reconstruction of identification standard from three aspects: composition of labor affiliation, self-consistency and emphasis. On the basis of clarifying the relationship between rights and obligations of all parties, China should bring part of new forms of business practitioners into the scope of labor law adjustment, and pay attention to the legal protection of their constitutional basic rights, the right of compensation for work-related injury and the right of security. In addition, the establishment of a comprehensive regulatory framework by strengthening the platform's self-discipline and national daily supervision is of great significance to the protection of labor rights and interests of online delivery clerks, the realization of higher quality employment, and the maintenance of social stability, equity and justice. The value of this paper to the theory is that, it clears the fog of diversity on the surface of platform employment, clarifies the essential characteristics of labor relations in the platform economy, and thus establishes the standard of workers' identity recognition.
[1] Tu, Y.Q. (2021). Research on the Protection of Labor Rights and Interests of Gig Workers: Extraterritorial Practices and China's Response. ZHENGFALUNCONG, (2):64-76.
[2] Friedrich August von Hayek. (2014) Where Democracy Is Going: Hayek's Collected Essays on Politics and Law. Central University of Economics &Business Press, Beijing.
[3] Jeremias, P. (2021). The future of the gig economy. Enterprise Management Publishing House, Beijing.
[4] Tu, Y.Q, Wang, Q.Y. (2020). The Rise of the Gig Economy and the Protection of the Rights and Interests of Gig Workers: Inspiration from the California Gig Economy Act. Journal of China University of Labor Relations,34(5):87-99.
[5] Lou, Y. (2021). Identification of New Employment Forms and Construction of Labor Rights protection system: A Study Based on Comparative Law. China Law Review, (4):61-71.
[6] Lou, Y. (2021). The legal basis and system construction of occupational injury protection for employees in new formats: Taking crowdsourcing online delivery workers as an example. Journal of Social Sciences, (6):20-29.
[7] Lang, W.Q. (2021). Fairness and Efficiency in the Platform Economy-Take Delivery clerks as an Example. SHEHUIKEXUEDONGTAI, (4):40-48.
[8]Dong, B.H. (2016). Intensive reading of Chinese labor law cases. The Commercial Press, Beijing.
[9] Jin, B.B. (2019). Research on the employment of online ordering platforms. Shandong Human Resources and Social Security, (12):38-41.
[10]Ai, L. (2021). An Exploration of Occupational Injury Protection for Platform Workers: Taking online delivery workers as an example. Social Science Front, (11):207-216.
[11]Wu, C.X, Jia, S.Q. (2021). Analysis of Legal Issues in Internet Employment Relations: From the Perspective of Takeaway Industry. Journal of Neijiang Normal University, 36(9):119-123.
[12]Ban, X.H. (2016). Research on the Protection of The Rights and Interests of Atypical Workers. Law Press China, Beijing.
[13]Zhang, J. (2017). Difficulties and countermeasures for employees in new formats to participate in work injury insurance. China Health Insurance, (6):57-59.
[14]Hao, Y.L. (2018). Difficulties and countermeasures for the protection of work injuries of employees in new formats. Journal of China University of Labor Relations, 2018(6).
[15]Chang, K. (2004). Labor Rights: A Study on the Legal Adjustment of Labor Relations in Contemporary China. China Labor and Social Security Publishing House,Beijing.
[16]Hou, L.L, Wang, Q.X. (2006). A study of the concept of laborer in labor law. Journal of Yunnan University Law Edition, (1):67-74.
[17]Zhong, K. (2021). Private Law Adjustment of The Sharing Economy: Contract Type Construction, that is, Platform Responsibility Development. China University of Political Science and Law Press, Beijing.
[18]Huang, Y.Q. (2003). A New Theory of Labor Law. China University of Political Science and Law Press, Beijing.
[19]Yao, Z.B. (2022). Technical subordination: the reconstruction of the identification benchmark of workers in the algorithmic era. Lanzhou Academic Journal, (2):101-112.
[20]Tang, X.Y. (2021). Legal regulation of concealed employment discrimination under algorithmic employment decisions. Journal of Henan Administrative Institute of Politics and Law, 36(6):75-84.
[21]Shen, J.F. (2022). The crisis of labor law in the digital age and the reform of methods for the adjustment of labor relations laws. Law and Social Development, 28(2):119-135.
[22]Yan, T. (2019). Rethinking the rise of China's labor constitution. China Law Review, (1): 58-64.
[23]Zhang, L.H. (2021). The Rule of Power: The Arithmetic System in the Age of Artificial Intelligence. Shanghai People's Publishing House, Shanghai.
[24]Wu, Q.J, Li, Z. Labor Control and Work Autonomy in the Sharing Economy: A Hybrid Study of ride-hailing Drivers' Jobs. Sociological Studies, 2018, 33(4):137-162, 244-245.
[25]Tu, Y.Q. (2018). Restructuring of the labor law system for flexible employment. China Legal Science, (5):216-234.
[26]Lou, Y. (2020). Construction of a social insurance legal system for platform economy practitioners. Chinese Journal of Law, 42(2):190-208.
[27]Yan, T. (2022). The Constitutional View of Chinese Labor Law: Shaping, Transmutation and Prospect. Academic Monthly, 54(2): 103-112.
[28]Liang, Z. (2020). The basic path and core concept of algorithmic governance. Governance, (36):40-42.
[29]Chen, B. (2020). Improving data security governance should start from three aspects. Governance, (36):43-48.
[30]Xu, Z.H, Xi, C.X. (2022). Crisis and response to the protection of the rights of platform practitioners under the algorithm logic. Journal of Xi'an Jiaotong University (Social Sciences),42(1):155-162.
[31]Ben Z. Steinberge, (2018). Redefining 'Employee' In the GIG Economy: Shielding Workers from the Uber Model, 23 Fordham J. Corp. & Fin. L. 577.
[32]Lin, L.F. (2018). Lecture Notes on Constitutional Law. Tsinghua University Publishing House Co., Ltd, Beijing.