France’s Mobility Bill Offers Additional Rights to Gig Workers

By Rosemarie Lally, J.D. October 11, 2019
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France’s Mobility Bill Offers Additional Rights to Gig Workers

​Proposed legislation in France would extend new rights to workers in the gig economy, potentially shifting the employment landscape not only for platform companies such as Uber and Deliveroo but also for the broader logistics industry.

The Loi d'Orientation des Mobilités (LOM), adopted by the National Assembly on Sept. 17 and now under consideration by the Senate, confirms that drivers of ride-hailing apps are self-employed. "The French government is generally supportive of the gig economy," said Jean-Francois Gerard, an attorney with Freshfields Bruckhaus Deringer LLP in Brussels. He added that the government has confirmed the workers' contractor/self-employed status and provided them with additional rights, rather than pushing digital platforms to classify drivers as employees as the California Legislature is doing in the U.S.

"As LOM is drafted today, the scope of reform would be limited," said Jean-Marc Albiol, an attorney with Ogletree Deakins in Paris. The measure's application would be limited to those companies that: 1) legally qualify as a "digital platform" with the purpose of connecting persons remotely, by electronic means, to sell goods, provide a service, or exchange or share goods or services; and 2) carry out the activities of "driving a transport car with driver" or "delivering goods by means of a two- or three-wheel vehicle, motorized or not," he said.

"As a result, only companies qualified as digital platforms and carrying out the listed activities will be able to benefit from these potential new legislative provisions," Albiol said, adding that most companies that use contractors are excluded from coverage.

Gerard took a more expansive view of the measure's potential scope, saying that "the new law is likely to impact transportation services beyond platform businesses." He added that digital platforms are not the first to develop a business model relying partly on contractors, noting that logistics services such as DHL and FedEx also use contract drivers.

Although digital platform businesses triggered the debate, the ensuing changes are likely to benefit the more traditional industry, he said, since "once a government shows a sign of openness to new ideas, it often has a wide impact." Further, workers are likely to pressure businesses to offer something different than the classic employee or self-employed status, building on these developments, according to Gerard.

What Are the New Drivers' Rights?

In 2016, the French legislature passed the El Khomri law, which provided self-employed platform workers with several labor rights: the right to strike, the right to organize, protection against workplace accidents and a right to training. The law also created an additional right for traditional employees: the right to disconnect from work calls and e-mails during nonwork hours, obligating employers to negotiate the specifics of the required use of telecommunication tools with employees.

LOM would extend the right to disconnect to self-employed drivers in the transportation industry. LOM defines the "right to disconnect" as the right to switch off the driving app without retaliation, Gerard said, leaving drivers free to choose when they want to be—and remain—active.

The new bill also would allow drivers the freedom to refuse a ride without penalty.

LOM would require platforms to notify drivers of the distance of a proposed ride and the net minimal payment to the driver prior to accepting a fare.

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Value of Charters to Employers

Under LOM, a digital platform could develop a charter outlining the conditions and procedures for the exercise of its social responsibility, providing details on working conditions for drivers, how the new rights will be implemented, quality control measures and possibly even additional benefits for drivers. Platforms choosing to develop a charter would have to consult with the drivers and seek approval from government authorities.

Charters could not be used to reframe the existing relationship between self-employed drivers and the platforms as an employment relationship, but "this will not prevent more court cases from being filed," Gerard said. Although drivers would still be able to introduce reclassification claims in labor courts, "presumably they will have fewer reasons for doing so," he said. The French government is expected to propose a legal framework for a social dialogue in the platform industry.

Albiol stressed the need for companies seeking to benefit from protection against reclassification actions to be "extremely precise and exhaustive in drafting this charter." For instance, he said various existing obligations, which might not be mentioned in the charter, could be brought before a judge in an action by a contract driver to obtain requalification as an employee.

Further, digital platforms would have to ensure that any commitments made in a charter remain achievable, considering the measure's insistence that protection against reclassification is contingent on a company's compliance with commitments made in the charter, Albiol said. Future actions to reclassify drivers as employees are likely to begin with proof of a breach of the commitments made in the charter, he said.

"LOM appears to be balanced in the new rights and obligations it contains, but it is regrettable that its scope is so limited," Albiol concluded. "It cannot be ruled out that the government's objective may be to first test this bill on digital platforms before seeking to extend it to other categories of workers."

Gerard, noting that some will not be happy with the concept of charters, focused on their positive potential. "To me, it shows that labor and employment law is not set in stone, and that creative solutions are possible so as to adjust to new developments such as the gig economy."

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

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