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Rimedi e fattispecie a confronto con i lavori della Gig economy

WP C.S.D.L.E. “Massimo D’Antona”.INT – 136/2017

Un maggiore approfondimento della parte di questo saggio dedicata alla prospettiva rimediale comparirà sul numero monografico di Lavoro e Diritto dedicato al tema dei rimedi di prossima pubblicazione

The paper analyses American case law concerning the status of workers for platform economy firms such as Uber, Lyft, etc. It shows that these workers may not fall neatly into either the “employee” or the “independent contractor” category under existing judicial tests.
It illustrates some alternative criteria of classifications proposed by judges and legal commentators (economic reality test or similar) and new legislative definitions or proposals of an intermediate category of workers.
The common law remedial approach, differently from that prevailing in continental Europe ,is not focused mainly on classifying workers within legal categories strictly defined, but on identifying the remedies which are most needed and effective to protect the interests and rights at stake. These remedies do not include necessarily all those usually granted to subordinate employees. Us case law usually recognizes to platform based workers the right to minimum wages, reimbursement of expenses, working time regulations, collective rights.
In Italy like in the USA the traditional indicators of subordination and independence have not proved satisfactory to classify these new workers. The legislator faced with new types of work, has differentiated their legal treatments with mixed traits even beyond the traditional categories of subordinate and independent employment.
The paper argues that the remedial approach adopted by common law may be interesting also for the Italian judges and lawmakers because it allows to identify, better than the traditional categorial approach, the set of protections and rights applicable to these new workers.

author(s): Treu, Tiziano
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