There is no dispute that a person has been working nine to five in a factory for twenty years as an employee. A person opens their phone every day to receive orders and deliver takeout, and the platform calls them“collaborator”He himself cannot say what he is, so there is controversy. In the past few decades, labor laws have been built on a clear binary imagination: either employees are fully protected by labor laws; Either they are independent workers and bear the risks themselves. The expansion of the platform economy is blurring this boundary line.

The reason why the problem is important is because“Is it an employee”Decided too many things——The minimum wage, paid leave, work-related injury benefits, and the right to association all depend on this identity determination. What this article wants to discuss is how the law can still identify and protect workers who are caught in the middle when traditional subordinate standards are diluted by algorithms and flexible employment. Around this problem, countries have roughly taken four paths: making subordinate standards“real”Add one between the two types of identities“file”Why don't we just go beyond our identities and give everyone a ride“bottom”, as well as using contracts and competition rules from the periphery“supplement”together. China is taking a pragmatic approach that overlaps with these paths.

1、 Why does the subordinate standard fail

（1） Standard labor relations as a template

Labor law is a product of the Industrial Revolution. Its entire system revolves around an idealized model, known in academia as standard labor relations. International Labour Organizationtwo thousand and threeYear's Dayninety-oneThe definition given by the conference is: an employment relationship refers to a legal relationship in which an employee provides labor or services to an employer under agreed conditions in order to obtain remuneration. On this basis, the academic community summarizes standard labor relations as an open-ended, direct employment contract established between a full-time dependent worker and a single employer.

The reason why this model is considered“Standard”It is because it packages the rights and obligations of both workers and employers in the most complete way, providing workers with the fullest sense of security and stability. Its constituent elements include personal subordination, bilateral relationship, equal obligations, economic dependence, stable remuneration and consideration, full-time and standard working hours, fixed workplace and time, and no definite deadline. Social insurance, collective negotiation, occupational safety and health systems are all built around this template.

（2） Triple Deconstruction: Algorithms, Elasticity, and Decentralization

In recent decades, this once rock solid model has begun to loosen. Globalization, industrial transformation, information technology, combined with the influence of enterprises and individuals“flexibility”The pursuit of joint efforts has given rise to a group of non-standard forms of employment. International Labour Organizationtwo thousand and sixteenThe Global Non Standard Employment report of the year categorizes work forms beyond standard employment as“Non-standard employment”It can be divided into several categories: temporary employment, multi-party employment, part-time and on call employment, as well as implicit or dependent self employment. European Uniontwo thousand and fifteenThe annual report introduced“New forms of employment”The concept of "employment organization" refers to the new forms of employment organization that have emerged with digital technology, including the employment of unemployed people to maintain their livelihoods“Drive-type”Platform employment, including high skilled individuals pursuing freedom and diversity“Opportunity oriented”Platform employment.

The commonality of these new forms is the systematic deconstruction of the standard model, highlighted in three aspects.

One is that the control method has changed. Algorithms have replaced manual management. The platform relies on mechanisms such as dispatching rules, scoring rewards and punishments, and credit ratings to achieve accountability for workers“Soft control”The traditional direct command and supervision that is visible and tangible has become blurred.

The second issue is that the work hour boundary is no longer in place. Workers have a choice for the first time“go online”“offline”The freedom and standard working hours system are almost impossible to implement in such scenarios.

Thirdly, the venue has scattered. Work is no longer limited to the physical space of the employer, one can start anytime, anywhere with just a mobile phone.

The result is that a large number of people have slipped into the gray area: they carry both the appearance of laborers (dependent on platforms, constrained by algorithms) and the characteristics of self-employed individuals (autonomous time management, bringing their own tools). Identity recognition has become extremely difficult, which has become one of the biggest challenges facing current labor laws.

2、 Four institutional responses

（1） Practice based on attributes: individual case judgment and legislative presumption

The first approach is the most direct and traditional: since the problem lies in“From attributes”If you're not sure, then identify it. There are two specific paths.

One is the adaptive adjustment of the judiciary, that is, from formal judgment to substantive judgment. When legislation cannot keep up, the court often rushes to the forefront. When dealing with platform employment disputes, countries generally abandon the mechanical application of attribute elements and instead make a comprehensive and penetrating substantive judgment. The judicial evolution in China is quite representative:two thousand and fiveNotice on Matters Related to Establishing Labor Relations issued by the Ministry of Labor and Social Securitytwo thousand and five[]twelveThe number has been established“Factual labor relations”The recognition criteria; totwo thousand and twenty-twoThe Opinions on Providing Judicial Services and Guarantees for Stable Employment (issued by the law)two thousand and twenty-two[]thirty-sixTo further clarify whether there is a labor relationship between platform enterprises and workers, it is necessary to comprehensively examine factors such as the degree of autonomy in labor time and workload, the degree of management of the labor process, whether it is necessary to comply with work rules and reward and punishment measures, the continuity of work, and whether transaction prices can be determined or changed.two thousand and twenty-fourThe Supreme People's Court issued theforty-twoThe guiding case study once again emphasizes that no matter how the production and operation mode changes, the core of identifying labor relations is always“Is there dominant labor management”This means that the focus of Chinese courts has shifted from formal control to identifying substantive dominance through algorithms and platform rules. This“Multi factor comprehensive identification”, gave the judge penetration“Named cooperation, but actually labor”Examine the substantive space of the agreement.

The second is the integration and reform of legislation in the European Union“Rebuttable employment presumption”It represents. European Uniontwo thousand and twenty-fourThe "Directive on Improving Working Conditions on Platforms" established a key tool: for any platform work arranged through digital platforms and executed by platform employees, as long as the existence of instructions and control can be determined based on national laws, collective agreements, or existing precedents, it is presumed that there is an employment relationship between the two parties. Once the presumption is established, the burden of proof shifts to the platform——If the platform wants to deny the employment relationship, it must provide counter evidence. The directive also specifies a series of control indicators, such as setting compensation limits on the platform, monitoring work performance electronically, restricting workers from independently deciding on work and rest time, constraining clothing and behavior, and prohibiting workers from expanding their customer base to third parties. When the platform triggers at least two of them, it can be inferred that the employee is the employer, and based on this, the employee can directly obtain“employee”Identity automatically grants rights such as minimum wage, collective bargaining, working hour protection, paid leave, social insurance, etc. This design shifts the burden of proof to the platform, essentially using procedural bias to offset the significant disparity in bargaining power between the two parties.

（2） Establishing an intermediary identity: opening a door for economically dependent individuals

The second approach acknowledges that not all atypical workers should and can be included in the traditional employee framework. Some people are highly dependent on a certain platform or customer for their entire economic life, but they still retain a certain degree of freedom in their bodies, so they are forced to become“employee”It not only harms the flexibility of the new form, but also may not be in line with their own choices. So, in“employee”and“Independent contractor”Create another one between them“The third identity”It has become a worthwhile option to try.

The consensus of this approach is that labor laws should not only protect traditional subordinate workers, but also address some economically disadvantaged groups“Economically dependent self-employed individuals”Incorporate into the field of vision; Enterprises do not have to bear all the legal costs and risks of traditional employers, but they must provide certain labor protection for these workers. The European Union, Spain, and our country have all explored it. European Commissiontwo thousand and sixGreen Book: Updating Labor Laws to Address Challengestwenty-oneThe Century Challenge has noticed the existence of such a group“Essentially self-employed, but economically dependent on the employer”They bear the dual costs of being employees (with a single income) and self-employed (with unstable income and self assumed risks). Spaintwo thousand and sevenThe Basic Law for Self Employed Persons was a groundbreaking legislation that established“Economic dependent self-employed individuals”Defined as75%The above income comes from a single customer and is excluded by negative formula——Employees are not allowed to hire others, must have independent property and production tools, and work in a way different from that of formal employees of the client. Although the recognized person has the right to enter into a written contract, not less thanthreePaid leave of one calendar day, contract termination protection, collective bargaining rights, etc., but the degree of protection is lower than that of regular employees.

Although China has not established a third category of subjects at the legislative level, it has taken a functionalist approach at the policy leveltwo thousand and twenty-oneThe Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Forms of Employment, jointly issued by the Ministry of Human Resources and Social Security, creatively proposed“Not fully in line with the establishment of labor relations”In such situations, enterprises are required to enter into written agreements with workers who are subject to labor management, clarify the rights and obligations of both parties, and ensure that they receive minimum working conditions such as remuneration, rest, and labor safety; The guidelines for safeguarding the rights and interests of rest and labor remuneration that were subsequently issued are in line with this. This is actually a“Middle road”Without breaking the existing binary subject pattern“Labor management”As a starting point, targeting specific groups“Targeted approach”Bottom line protection.

（3） Beyond Identity: Towards Universal Security

The third approach is the most radical, it directly abandons“Employment relationship comes first, followed by social protection”The logic advocates for the inclusion of everyone——No matter what contract is signed or what identity is held——All are included in the universal, equal, and irreducible protection of basic labor rights. The basis for this is that the purpose of protecting labor rights is to maintain work safety and human dignity, and should not be distinguished by legal identity.

French labor jurist Alain·Supio conceived a model for this, depicting social security and labor rights as four concentric circles: the innermost layer provides employees under standard labor relations with the most comprehensive and strongest protection; The middle layer provides gradient protection based on the differences in atypical employment (degree of dependence, job stability); The outermost layer is a basic protection platform for everyone, whether self-employed or occupational groups outside the formal form, enjoying basic human and social rights such as anti discrimination, occupational safety and health, association and collective bargaining, but the intensity gradually decreases. International Labour Organization“Global Committee on Future Work”2019The annual release of 'Working for a Brighter Future' officially“Universal labor protection”Put it on the table: Regardless of the contract form and employment status, all workers should receive sufficient labor protection and work with dignity.

（4） Peripheral safety net: contract, self-discipline, and collective strength

In addition to the three main lines mentioned above, there are also some auxiliary tools that can fill in the gaps at specific stages.

One is to rely on contract law and fair competition law. For contracts concluded due to obvious unequal status between the two parties, standard clauses, unfair rules, and anti-monopoly laws prohibiting the abuse of market dominance can be used to constrain the platform's unreasonable behavior.

Secondly, encourage self-regulation. Relying on industry associations to establish codes of conduct, or using corporate social responsibility and business reputation as leverage, using soft law to guide companies to treat all labor who provide services to them kindly.

Thirdly, promote collective bargaining. Even if they are not employees, practitioners should have the right to organize and engage in collective bargaining with platforms or clients, using collective efforts to strive for more reasonable working conditions and compensation.

3、 China's pragmatic choice: between stock and increment

The change in labor relations is a profound and continuous socio-economic transformation, which brings considerable efficiency and opportunities, but also leaves unresolved problems in traditional labor protection. To deal with it, it's not about taking labor relations out of the realm of standards“unbind”Even if it's done, we still need to incorporate new non-standard and diverse forms of employment, accompanied by typological tools that adapt to various flexible forms, in order to balance fairness.

Looking at the world, there has never been a one size fits all solution. The future labor law will mostly be a mixed model of multiple lines, parallel and multi-level efforts: implementing subordinate attributes belongs to stock reform, and safeguarding the foundation of labor law protection; Adding intermediate identities is incremental innovation, which blocks employment loopholes in gray areas; Moving towards universal security points towards the future, serving a comprehensive social security network. China's choices have a distinct pragmatic color and are accustomed to“Touching the stones to cross the river”On the one hand, constantly updating judicial interpretations, accurately diagnosing and implementing policies for new forms of employment, and on the other hand, gradually expanding the scope of labor protection without touching the current legal framework. From a longer-term perspective, this approach not only maintains a considerable degree of tolerance for new economic formats, but also firmly safeguards the basic interests of labor subjects.

At the end of the day, the direction of all institutional designs is only one: to promote economic development and innovation, meet the flexible needs of the market, and ensure that every person who sells their labor has the necessary security. This is not only a legal issue, but also a fundamental issue related to social fairness, justice, and sustainable development.