Revue Européenne du Droit
Deflagrations in the universe of labor relations
Issue #4
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Issue

Issue #4

Authors

Emmanuelle Barbara

Revue européenne du droit, Summer 2022, n°4

Flashback

The labor society as it has been known for more than twenty years has left the shores of the 20th century and is trying to reach those of the 21st – the least we can say is that the latter are shrouded in mist, and even fog, for one needs to face up to the crumbling of the concepts and categories that served as a basis for its contemporary construction.

Nevertheless, it was necessary to settle on a definition of labor for economic agents. According to sociologist Marie-Anne Dujarier 1 , this polysemous word, with no less than 98 synonyms, serves as a generic noun designating an indefinite tangible thing, as well as a subject followed by a verb, as if labor were animated by intention (‘labor is fulfilling’) or endowed with a capacity for action (‘labor is a source of suffering’). In any case, labor designates ‘a spectacular diversity of tasks and occupations’ 2 and says nothing about the status of those who undertake it.

In the labor society rebuilt in the middle of the 20th century to serve first the civilization of the factory and then that of the office, labor, understood as a productive economic activity, designates not so much a content as a protected status for those who engage in it. Therefore, the permanent employment contract, described as the ‘normal form of labor’ in French law 3 , is the cornerstone of the labor society and of employment policies. The permanent employment contract, which is not defined in the French Labor Code, has been for its holder the effective receptacle of a promise of stability and of compulsory and complementary social protections, in return for accepting the subordination link imposed on him. This founding category distinguishes those among the working population who, as holders of a permanent employment contract, have full access to social recognition and to the advantages of the model in terms of access to credit and housing. The fulfillment of this promise has contributed to the structuring of a stable society, behind the walls of the company, within a strong corporate culture where company-level collective bargaining entrusted to the unions offer more favorable arrangements than the law and the branch collective agreement for the benefit of all the company’s employees, whether or not they are members of the union or unions. In this context, citizen-employees were able to have a ‘passport for life’ 4 , as Thierry Pech nicely describes it, allowing them to build a long-term life project.

France still has nearly 80% of its workforce in salaried employment. But they are no longer all holders of a stable, i.e. full-time, permanent contract. The use of other, atypical forms of employment contracts has developed and refers to anything that deviates from the norm. This is the case for fixed-term contracts and part-time work contracts, as well as for all State-subsidized contracts. In the course of a succession of economic crises, the term ‘precarious employment contract’ has gradually come to designate not so much the legal form of the relationship as its abnormal nature. A distortion has been created between these different categories of employees, where the ‘insiders’, sheltered from the vagaries of the order book and having a long-term job guarantee, are distinguished from those who are employed without these guarantees. It is indeed upholding these boundaries between these types of workers that the promise of stability could be maintained for the benefit of insiders.

Another boundary, separating employees and non-employees, used to seem clear. The latter were listed in clear initial categories, those of craftsmen, tradesmen, liberal professions and (some) company managers. In principle, the French Labor Code is not concerned with the regulation of their activities, but over time and because of the attractiveness of the status of employee, numerous presumptions of employment contracts were added (models, performers, etc.). At the beginning of the century, new border crossings towards salaried status were encouraged. One can convert a contract for the provision of services into a contract of employment for the benefit of the service provider by using the technique of ‘portage salarial 5 ; one can also propose a model of cooperative regrouping ‘entrepreneurial employees’ 6 ; one can also refer to groups of employers, allowing people to enjoy the status of employees 7 , which secures their situation, while sharing their activity for the benefit of its members according to their needs.

In the last century, the physical boundaries in the world of work were also clear. The company was then the place of production protected and reserved for employees, clearly distinguished from the outside world. It was also the space where the working time was passed, while personal time was supposed to be sealed off. In addition to the distinct moments marking the timeline of daily life, the cadence of the entire life was established in three stages, that of initial training, then that of work in the company (i.e., in a stable job), and finally that of retirement.

The employees were themselves organized into categories, ordered within the company according to a classification that controls progression and careers in a linear fashion. The collective agreements trace this classification effort and provide for rights that increase with seniority. This legal construction was possible over the long term and reflected the state of mind of employees who were rather impervious to any injunction to move. The law encouraged them to do so, including in terms of training, since the obsolescence of knowledge was not reached in the course of a career.

Of course, after the Trente Glorieuses, this picture no longer corresponded to the challenges brought about by the succession of economic crises. A combination of disruptive factors has had a profound impact on this arrangement. Globalization has favored relocation policies (‘stock market layoffs’). The financialization of the economy has, among other things, influenced the way companies operate through massive recourse to subcontracting or outsourcing. These different factors have influenced the French reforms of collective labor law since 2004 8 in the direction of greater flexibility 9 and, ultimately, a withdrawal of the scope of the law, which, apart from public policy provisions, is limited to completing the gaps of company-level agreements. Nevertheless, these changes must now be seen in the light of other causes of complexity arising from the gradual evaporation of the walls that held the structure together.

Two essential parameters have been shattered, the effects of which are perceptible in the work society: the relationship to time is no longer stable, and boundaries have given way to time compression and porosity. Instability has become the norm 10 , and the injunction of permanent adaptation is imposed on everyone. The company becomes a place that opens up to statuses other than employees, it can attempt to create boundaries not inside but outside of itself by organizing half-virtual, half-tangible marketplaces, work and private activities can coexist without drama, the places dedicated to work within the company are no longer exclusive. Not only time, but also status is blurred. The employee status no longer really responds to the univocal definition of vertical subordination, considering the apparent efforts to limit this duty of obedience for the sake of autonomy. As for the self-employed worker, the fact that he is economically dependent on his principal explains the desire to qualify him as an employee, contrary to the principles of the Bardou decision 11 , which rejected this criterion in favor of the sole criterion of the subordination link.

Technologies with a strong impact on our personal and professional lives have imposed themselves on all human activities, from consumption to interactions with others. As a result, the individual questions her own ‘relationship to work’ and seeks to control her destiny without abdicating the fullness of her rights as a person and no longer as a simple worker. The quality of life at work, the meaning, the social and environmental impact and the values deployed by the company have become major factors of engagement. A fertile ground for a substantial evolution of the contemporary conception of the individual at work is underway.

With the technological revolution and the emancipatory aspirations claimed by the individual, the role of the company in society is changing. It is no longer a simple productive agent designed to make profits. The company is opening its doors to the challenges of the time, from the energy transition to social action, inflections illustrated among others in France by the French duty of vigilance 12 .  

A new arrangement of our work society is at work: lacking clear boundaries, marked by the quest for individualization of needs and correlatively of job offers, it proposes heterogeneous situations and multiple organizational modes, far from the codes of the past. The flexibility gradually giving way to fluidity would be a radical break with our traditions and would not be devoid of risks of difficulties or injustices. 

1. Deflagrations

1.1. The emergence of platforms

The irruption of the service platform undeniably disrupts the functioning of the normal labor markets, and undoubtedly foretells unprecedented changes.

‘A strange job’: the use of service platforms for self-employed workers has provided an unprecedented and unexpected outlet for the instigators of the autoentrepreneur status created by French law no. 2008-776 of August 4, 2008. At that time, the very principle of the service platform was not known. The most symbolic and most contested in principle, despite their undeniable success with consumers, are undoubtedly Uber, which was implanted in France in December 2011, and Deliveroo in 2015. Since 2009, the number of self-employed entrepreneurs has continued to grow to reach almost two million in July 2021 13 , with a notable increase even in 2020 (+4% compared to 2019) 14 . Even better, INSEE statistics of December 15, 2021 15 show a record number of business start-ups over the first eleven months of 2021, which already exceeds the previous year’s record. An increase of 19% in the number of business start-ups is recorded and in the raw data, the share of micro-entrepreneurs in the total number of businesses created stands at 64.5%. For their part, ‘platform workers’ in France should not represent more than 1% 16 of the 12.4% of self-employed workers (but no precise data is offered in support of this figure), which is not really followed by public data but which suggests a very substantial increase if we take into account the evolution of the number of the ‘new self-employed’ 17 .

These intermediation platforms, a ‘market-company hybrid’ 18 that disrupts the boundaries of the company by substituting a commercial relationship for a labor relationship 19 , address the entire spectrum of economic life, regardless of the quality of the user (employee or not). From e-commerce, social networks, content production hosting sites (Youtube), service exchanges where everyone is in turn a producer and/or consumer of services (Blablacar, Airbnb), or B2C or B2B employment platforms 20 . It is these so-called service platforms that are the focus of attention. The economy of networking platforms, surfing on the technological and sociological evolutions of the time, invests as much in the ‘knowledge economy’ by targeting the ‘freelancers’ of the IT intellectual services sector – independent consultants with high added value (Malt, Upwork and dozens of others) – as in the expanding sector of mobility, where the most lively polemics are concentrated as to the true nature of the legal relationship, or even in the social and solidarity economy. For this last sector, it should be noted that thanks to the inclusion in the law 21 of a 5th category of structures for professional integration through economic activity (structures de l’insertion par l’activité économique or SIAE), we have come to recognize, on an experimental basis, the enterprise for professional integration through self-employment (entreprise d’insertion par le travail indépendant or EITI) 22 . The idea that self-employment can be a vector of professional inclusion in place of an employment contract marks a notable cultural evolution, if not a break, to the point that the president of the federation of professional integration enterprises has indicated that EITI is not necessarily synonymous with increased precariousness 23 .

As for the thorny question of the true nature of the legal relationship between professional users of these platforms and the latter, recent analyses remain cautious 24 . This question, which is rich in fundamental political and legal dimensions that have not been sufficiently explored in rational debate, gives rise to opposing ideas over the best course of action, considering that the development of employment outside the employment contract affects low-skilled professional categories. It will be necessary to either impose the single model of an ‘all salaried employment’ (automatic requalification by the judge or by the force of the law, which would assimilate these activities to salaried employment) or alternatively to create a presumption of salaried employment according to certain fixed criteria (draft European directive of December 9, 2021), or to reinforce the autonomy of the self-employed while entrusting to a form of labor bargaining, modelled on that of salaried employees, the task of organizing the protections for the benefit of the self-employed 25 . French legislation, for the mobility platform sector alone, has chosen the latter option 26 , while case law concerning the recognition or denial of a subordination relationship, regardless of the jurisdiction, offers a variety of decisions that are difficult to reconcile, due to the assessment of the bundle of evidence, the cursors of which vary from one decision to another 27 , with a recent extension before the criminal court, based on alleged concealed work 28 . It is obvious that the legal security of the French status of autoentrepreneur for the accomplishment of activities proposed by some platforms is undermined 29 . However, despite all the efforts that could be made to strengthen the contours and guarantees of any contract for the provision of services with platforms, in particular under the European Platform to Business (‘P2B’) regulation, which came into force on July 12, 2020 30 , no legal provision will ever guarantee that such a contract for the provision of services could not be reclassified as an employment contract.

A disturbing development: if one could observe since 2017 31 the extension of the platformization of the economy and its unstoppable character, there is a growing fear that such an eruption of the figure of the platform worker adopting the self-employed status will contaminate the field of what would naturally fall under employment relationship. This evolution is already at work in the B2B intellectual service sector (IT, digital, marketing, design) where digital technologies and the networking of ‘freelancers’ 32 could lead to unprecedented outsourcing, blurring the boundaries of the company 33 . While claiming to preserve the legitimate development of platforms offering activities to freelancers – which should not be stifled – it is important that the legal qualification of these relationships be better ensured and that the protections of freelancers be better distributed. France has equipped itself with a legal arsenal to begin regulating platforms that put people in contact with each other 34 . It has focused on regulating the mobility sector (VTC/delivery) 35 , leaving aside the others, perhaps because it is not possible to understand all the others through this prism or because the controversy over status is less eruptive there. An original approach has been chosen, that of organizing a collective representation of drivers and delivery personnel, empowered to negotiate with the organizations representing the platforms – an eminently complex and delicate subject – on mandatory topics concerning the determination of income, skills, working conditions and the prevention of professional risks. It will be necessary to adapt Article 101 of the Treaty on the Functioning of the European Union (TFEU), which prohibits concerted practices between companies with the aim of restricting or distorting competition. But this is a manifestation of the transgression of the traditional boundaries between employees and self-employed. France’s choice regarding mobility platforms, which differs significantly from that of other European countries 36 , constitutes an unprecedented means of regulating a completely new sector which, while borrowing from the collective bargaining of employees, does not alter the principle that the relationship partakes to the world of the self-employed and commercial law. 

On December 9, 2021, the European Commission presented a draft directive on platform workers following the resolution of the Parliament in Strasbourg on September 16, 2021 37 . The European Union currently counts 28 million platform workers and projects that they will be 43 million by 2025 – that is, tomorrow. Among them, 5.5 million people would be wrongly classified as self-employed today 38 . The key measure of this draft directive is the introduction of five control criteria to characterize, but only as presumption, a subordination relation – the characterization of any two of them presuming the platform to fall in the ambit of the employment contract vis-à-vis the professional. This presumed employer will be entitled to challenge the presumption, but the burden of proof will be on him. It is a question of harmonizing, within the Union, the approach to a major economic and legal fact, sensitive and highly controversial everywhere, which destabilizes the traditional legal order distinguishing employees from non-employees 39 , while noting that these singular workers borrow characteristics from both categories.

1.2. Disruption in the employee universe 

‘A strange universe of labor’: another phenomenon has come to strike the universe of the salaried worker brutally and massively: the compulsory teleworking, imposed since 2020 during the successive lockdowns. Work invites itself at home on a compulsory basis, in the places as they are, in the family context as it is, with the technological means as they could be anticipated, stirring up at once distortions of individual professional situations by the mechanical effect of the injunction imposed on the whole nation. In terms of borders, ours have been drastically reduced, starting with the right to transport ourselves outside the confines of the home. The importation of the professional world with all its inherent constraints has also constituted, for some people, at least for a while, a virtual window on the outside world, by accomplishing a useful activity, the company having become a deserted place, but one still standing. We have experienced a complete inversion of the paradigm where work and personal life were supposed to coexist. With its ups and downs, psychological health has been put to the test, especially due to the imposed isolation and pressures that are sometimes difficult to overcome. However, it must be noted that the loosening of the stranglehold of the pandemic and the regained freedom of movement have not led to the rejection of this work modality.

A disturbing development: the data collected on this vast experiment are still provisional, but it is a real revolution in work models, whereas until now it was only seen as an embryonic mechanism 40 . The impacts on the organization of work go beyond the strict question of the place of professional practice. This experience has proven that salaried labor based on the unity of time, place and action could no longer really prosper. Leaving in its wake a ‘scattered company’, remote work, if it became a fixture outside of constraints of health or other nature, would lead to disruptions in whole areas of the French Labor Code, from the calculation of working time to policies for the prevention of physical and mental health issues 41 . The figure of the autonomous executive, benefiting from the system of fixed working days, should be extended to teleworkers. If they are not legally autonomous, the rules of supervision and control would be in contradiction with the philosophy of teleworking. All publications on remote work since the beginning of the pandemic refer to trust, a rather new notion or virtue as a management principle. If control and trust are to coexist in this mode of activity, the definition of the subordination relationship could be affected. Already, the activity entrusted to remote work is more likely to be expressed in the form of assignments with an expected result and a deadline, which are characteristics of services provided by a service provider. It follows that, without the condition of presence on a professional site, and thanks to digital tools that increase the capacity for action, the legal link with a single employer could appear insufficiently optimized. In other words, from the employee’s point of view, the experience of remote work promotes self-employment and stimulates the entrepreneurial spirit that many workers claim to have, to the point of predicting the advent of multi-activity combining several jobs and several statuses in the same day 42 . On the corporate side, given the management difficulties that the experience gives rise to, it could be a catalyst for accelerating the platformization of certain services 43 .

1.3. Features common to these two explosions 

A first common feature of the irruptions disrupting two distinct universes is the obvious: digital technology has a profound impact on the way we act, interact, and even conceive of work.

Another common point is that remote work as a mode of salaried work, as well as the use of services intermediated by digital platforms, are becoming firmly established in lifestyles and creating new habits. In both cases, the pandemic has amplified these practices and revealed their irreversible nature. As far as platforms of all kinds are concerned, everything indicates that they have flourished during the successive periods of lockdown, with remote work having amplified the use of home delivery 44 or the expansion of online work in all sectors 45 .

In times of crisis, service platforms and constrained teleworking emerge in a legal context that is poorly regulated or in the process of being developed, thus revealing the respective shortcomings of the systems. Remote work and access to customers rather than to an employer are globally perceived positively as a promise of emancipation, liberating energies, according to a famous expression, and allowing individual control of one’s own life. However, each of these technological innovations raises complex legal issues and potential new sources of injustice. Regarding remote work, not all jobs are concerned – we are talking about a third of the current total – which constitutes a difference in nature creating a new border between those who can do it and those for whom this option is closed. For the workers of certain platforms, particularly the least qualified, the use of the status of self-employed entrepreneur can be interpreted as an expression of circumvention of the rules on the employment contract by the said platforms acting as employers 46

Beyond platform workers, it remains that, schematically, the supply of work as built by our social model is expressed as a trade-off between freedom and risk-taking (self-employment), or integration into an organized service in exchange for protection (employment). And this equation is not favorable to self-employment, even if the status of employee is not favored either (see below). Hence the relevance of a hybrid formula allowing each worker to combine these two statuses for distinct activities.

In the current state of our model, these recent developments have in common the risk of isolation, fatigue or atomization of people. But caring for health in the world of labor is one of the essential requirements, whatever the status of the worker, which the experience of the pandemic has made indisputable.

These new work experiences show the extent to which they are part of an individualized relationship, as if only the service contract or the employment contract governed the interactions between the professional and the legal entity, outside of any collective context. In all cases, however, there is a collective. The long-term viability of these hybrid jobs, in the way they are performed or in the status of their holders, depends on the creation or maintenance of new types of collectives or solidarities compatible with the configurations in which the work is performed. This necessary collective process of consultation is at work in the field of mobility platforms 47 , and inventing a specific HRD for the management of corporate freelancers 48 is nowadays suggested. We strayed far away from the distinct boundaries between employee and non-employee acting outside the company.

The time has not yet come to evaluate the impacts of these developments on the development of the productive society. But it is clear that these social, societal, economic and legal changes will require new legal or contractual regulations to facilitate the peaceful coexistence of several modes of production reflecting a vast heterogeneity of situations or conceptions of labor. This is why, in the face of these new split careers favoring the choice of multi-activity or activity succession, its follow-up could be listed in a future ‘personal protection account’ developed around the figure of the Personal Activity Account found in the French Law n°2016-1088 of August 8, 2016 on labor, the modernization of social dialogue and the securing of professional paths. Extending the contemporary exploration of the personal account, like the personal training account or the time savings account, this Personal Activity Account could be the interconnected receptacle of all the rights acquired as an employee (time savings, employee savings, retirement) and/or as a non-employee (professional training, unemployment rights, health and supplementary retirement …) allowing its holder, whose legal status varies over time, to organize, to steer by arbitration his rights, according to his professional projects.

In any case, this is the end of the economic and social functioning of a labor market that responds to a monolithic representation of the company and of the accomplishment of work, regulated by an undifferentiated management standard applied to employees previously melted down and listed according to a classification adopted by branch.

2. Emergency in the employee world 

If public attention is grabbed by the phenomenon of platforms or, more broadly, the craze for entrepreneurial activity, it is nevertheless in the world of employment relations that everything is changing. Let’s make no mistake about it: between the weariness of the subordination link, the health crisis, and the efficiency of communication technologies, the evolution of the employment relationship and its modes of expression must be at the center of reflections, much more than the status of platform workers, which is, at worst for the moment, only an irritant in a labor society designed for the open-ended employment contract. The challenge is to keep the employment relationship as enviable as it has been in the past.

2.1 The ongoing inclusion of the self-employed in the social model does not solve everything

If the characterization of the statuses applicable to workers has been an essential legal issue in the past, one must ask whether this is still the case: would not the essential issue lie in redefining access to social rights open to the working population and their financing, whatever their status?

This process of better harmonization was initiated a few years ago. Maternity for employed and self-employed women lasts the same number of weeks. The rights in kind of coverage for sickness are identical. The French social security system for the self-employed workers (the ‘RSI’) was joined to the general system. Recently, in the law on the financing of social security for 2022 49 , the principle of complementary social protection by collective bargaining (health, death, disability, retirement) for platform workers was enacted as of January 1, 2023. The law on the self-employed of February 2022 50 provides for a modification and simplification of the unemployment scheme for the self-employed, the self-employed worker’s allowance being increased and its obtention facilitated 51

Even if the reasons for requalification into an employment contract could be reduced thanks to a harmonization of social benefits for all, holding a salaried job or offering one’s services as a self-employed person is a choice of life and action. No one would aspire to a single fuzzy legal status, half-subordinate, half-autonomous, falsely justifying an attraction to the status of salaried employment. It will be necessary to find a distinct legal expression for each of these statuses, considering the evolution of the subordination link which, for reasons of attractiveness of the wage-earner, must be recast into something else.

2.2. Work in the employment world must be reconceptualized

The last two years have clearly changed the relationship to work. Questioning its place in one’s life is no longer taboo; it is called the ‘relationship to work’. It is up to work to adapt to the priorities of the individual and not the other way around — at least that is the hope of certain categories of workers today. 

The fate of the employment relationship and of collective relationships must be rethought in the current context. Social networks irrevocably modify the place and the relationship of the individual to information and invite him to express his opinion, perceived by himself as useful or necessary to any debate, whatever the private or public forum where he expresses himself. The result is a profound change in personal and professional interactions. The social networks used by employees or professionals in a given sector are changing the way they interact with each other, especially on a collective level, in a new form of ‘community of interest but not of work’ 52 . Sometimes internalized, these corporate social networks are multiplying; vectors of fluid communication offering a broader vision of the company 53 , devoid of any hierarchical markers, they serve to organize a more collaborative work where best practices are discussed, or allow to agglomerate direct but punctual or very targeted claims. 

The Covid-19 crisis has weighed on the morale of citizens and led to the worrying observation of ‘a tired society’ 54 . The feeling of individual powerlessness at work competes with discouragement, which ‘dries up the moral foundations of commitment to the point of mutilating the person in his or her essential convictions’ 55 , ‘its perception increasing as individualization in society strengthens’ 56 .

When employees make personalized demands, the company must take them into account but preserve social cohesion. The introduction of telework, or ‘hybrid’ work, which involves an organization that intersperses periods outside the company (telework varying from 1 to 3 days on average) and on site (‘face-to-face’), is an illustration of an ‘à la carte’ adaptation of work methods. The hybrid execution of work raises real and complex management issues which may create discriminations against teleworkers, and even towards employees who do not use it. In these conditions, faced with the difficulty of setting up a hybrid mode of operation, many companies prefer to impose a return to the workplace. It is therefore not certain that hybrid work will become the norm when telework is completely free of the pandemic-related fears, as it is so difficult to set up and not without risks for the individuals or the company 57

The company is confronted with a profound evolution of the modalities of consultation, adhesion and negotiation to shape the company culture by adopting new professional rites or why not, by inventing its own mechanisms. Without forgetting that these requirements are part of the context of the modification of employee representation resulting from the 2017 reforms on the works council and social dialogue. The assessment of the ordinances proposed by France Stratégie 58 indicates first that the new representation schemes are still in the process of being appropriated by the stakeholders. Second, it has not yet given rise to a real big bang in collective bargaining, except for the dynamics of small or very small companies that have been given the right to access it, which was previously prohibited due to the absence of union delegates. There is still much to be done by companies to enrich the themes of reflection in line with the societal commitments of the time 59 and to act in accordance with a demand for greater individual autonomy, diverse in its expression and needs. 

It is up to the company to demonstrate that it is taking on all the goals that are now its own – corresponding to an enlarged CSR – so that the employee in turn accepts to become involved. 

Let’s recall the wave of ‘Great Resignation’ 60 that hit the United States and to a lesser extent in Europe 61 . In France, the labor shortage is more likely to affect the hotel, restaurant and health sectors, which fall prey to their image. If the counterpart to legal subordination has traditionally been the promise of stability, security and progress, what can the citizen-employee expect from his subordinate commitment, devoid of any promise of security or progress, since the company is itself subject to the pangs of instability?

It is therefore up to the company, with its actively implemented raison d’être, to propose an adequate work offer to attract talent, some of whom no longer want to be employees 62 . The prospect of a long-term career seems illusory – no one believes in it anymore. But it is on the offer of an experience where the employability of the employee is assured and valorizing, where the latter gains in possibilities of increase of competences, network, know-how, commitment, but also of rights drawn from a fair return of value to his profit, that a new social pact of the 21st century must be built… together with independent workers, and not as a substitute.

Notes

  1.  For a fascinating analysis of the notion of work see, M.-A. Dujarier, Troubles dans le travail, Sociologie d’une catégorie de pensée, PUF, 2021.
  2.  Ibid.
  3. art. L. 1221-2 of the French Labor Code: “the employment contract of unlimited duration constitutes the normal and general form of the employment relationship” (free translation).
  4. See, T. Pech, « Insoumissions. Portrait de la France qui vient », Seuil, 2017.
  5. Law n°2008-596 of June 25, 2008 on the modernization of the labor market, art. L 1251-64 of the French Labor Code
  6. Since the law of July 25, 1985, several legislative evolutions until the law n°2005-882 of August 2, 2005 in favor of small and medium-sized enterprises which allowed its constitution in the form of a cooperative company and the law n°2016-1088 of August 8, 2016 relating to work allowed the access of these groupings to the benefit of aid in terms of employment and professional training.
  7. Since the law of July 25, 1985, several legislative evolutions until the law n°2005-882 of August 2, 2005 in favor of small and medium-sized enterprises which allowed its constitution in the form of a cooperative company and the law n°2016-1088 of August 8, 2016 relating to work allowed the access of these groupings to the benefit of aid in terms of employment and professional training.
  8. Law n°2004-391 of May 4, 2004 on lifelong vocational training and social dialogue, which opened up the possibility of negotiating overriding collective agreements, even unfavorable ones under certain conditions.
  9. Most recently, law n°2016-1088 on labor, the modernization of social dialogue and the securing of career paths of August 8, 2016 and the five Pénicaud ordinances of September 22, 2017 designed to free up energy and protect employees.
  10. See N. Colin, “Hedge – A greater safety net for the entrepreneurial age,” 2018 for a contemporary and technological history of work.
  11. Cass. civ. July 6, 1931, D. 1931, 1, 131.
  12. Law n°2017-399 of March 27, 2017 on the duty of care of parent companies and ordering companies. It applies to groups and companies meeting threshold conditions. Its purpose is to prevent social, environmental and governance risks, related to their operations by extending to the activities of their subsidiaries and their subcontractors and suppliers.
  13. URSSAF observatory published on July 23, 2021: an increase of 17.5% compared to 2019! For 16 billion euros, or +0.8% compared to 2019.
  14.  INSEE n°1837 published on February 3, 2021.
  15. Informations rapides n°318 published on December 15, 2021.
  16. French Senate Social Affairs Committee report on platform workers of May 20, 2020.
  17. Roland Berger 2018 mentions 405,000 freelancers in France and 1.04M new independents.
  18.  A. Casilli, En attendant les robots, Enquête sur le travail du clic, Seuil, 2019.
  19. Les nouveaux intermédiaires du travail B2B, Rapport d’études, Dares, March 2022, n°27, p. 4.
  20.  art. 83 of the French law n°2018-771 of September 5, 2018 for the freedom to choose one’s professional future.
  21. 19 EITIs recognized in June 2021, with another 40 to follow, which led to the extension of the experiment until December 31, 2023. Lulu dans ma rue is the first company to be recognized.
  22. www.lesentreprisesdinsertion.org/presse/entreprises-dinsertion-par-travail-independant-cap-vers-prolongation-lexperimentation
  23.  For example, the Frouin Report of December 1, 2020, entitled “Réguler les plateformes numériques de travail” rules out the hypothesis of creating a third status and just as much the legal recognition of the employment contract because not all platform workers are in the same situation of economic dependence, which would exclude this qualification for them, p. 36. French National Digital Council, Travail à l’ère des plateformes Update required, 2020. Information report by Mr. Forissier, Ms. Fournier and Puissat, Social Affairs Commission, No. 452 Travailleurs des plateformes : au-delà de la question du statut, quelles protections ? – May 20, 2020.
  24. Election présidentielle – Les frontières de l’emploi : des évolutions ? – Etude par Françoise Favennec-Héry, La Semaine Juridique Social n°14, 12 April 2022, 1105.
  25. Law n°2019-1428 December 24, 2019, Ord. n°2021-484 April 21, 2021, Law n°2022-139 February 7, 2022 and Ord. n°2022-492 April 6, 2022 reinforcing the autonomy of self-employed workers of mobility platforms and organizing the sector social dialogue.
  26. See e.g., Uber Cass. Soc. March 4, 2020 n°19-13.316, contra Uber CA Lyon January 15, 2021 n°19/08056, Deliveroo CA Paris June 22, 2021 n°19-03685 (requalification), contra Deliveroo CA Paris April 7, 2021, n°18/02846 or CA Paris, February 15, 2022 n°19/12511. Le Cab (refusal to requalify) Cass. Soc. 13 April 2022 n°20-14.870, Click and walk (refusal to requalify as concealed work) Cass. Crim. 5 April 2022 n°20-81.775. For a mapping of the main decisions rendered worldwide, see: I. Beltran de Heredia Ruiz, “Employment status of platform workers: national courts decisions overview”, Blog de Derecho del Trabajo y de la Seguridad Social, accessed on 21 April 2022.
  27. Trial from March 8 to 16, 2022 in the Paris Correctional Court prosecuting Deliveroo and two executives for concealed work. The judgment of April 19, 2022 condemns the platform and two of its managers for concealed work for the period 2015-2017. An appeal has been filed by the defendants.
  28. With a tendency to consider that the self-employed in the high-value-added knowledge economy would be somehow excluded from the legal status controversy. See French Senate Report 2020, op. cit.
  29. Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services.
  30.  For example, 2017 Annual Study of the Conseil d’Etat, Puissance publique et plateformes numériques : accompagner l’ubérisation, https://www.vie-publique.fr/rapport/36918-etude-annuelle-2017-du-conseil-etat
  31. The status corresponds either to an autoentrepreneur or to a simplified business form such as SASU and seen as an emerging form of new employment.
  32. Dares study report, March 2022, op. cit., p. 6.
  33. Art. L 7341-1 et seq. of the French Labor Code from the aforementioned law of August 8, 2016, art. 242 bis of the General Tax Code and art 111-7 of the Consumer Code on the definition of a platform.
  34. Loi d’orientation des mobilités of December 24, 2019 n°2019-1428, ordinance n°2021-484 of April 21, 2021 relating to the modalities of representation of self-employed workers using platforms for their activity and to the conditions for exercising this representation, law n°2022-139 of February 7, 2022 ratifying the above-mentioned ordinance.
  35. Spain chooses the status of employees for platform workers, the court of Milan has proceeded to the massive reclassification of several platforms, the United Kingdom classifies Uber drivers as workers while a Court of Appeal has maintained the qualification of self-employed for Deliveroo delivery drivers.
  36. Draft directive on “working conditions, rights and fair social protection for platform workers – new forms of employment linked to digital development”.
  37. European Commission press release of 9 December 2021.
  38. Except for the United Kingdom, which also distinguishes workers, corresponding to economically dependent self-employed people.
  39.  4% of employees were teleworking in 2019 compared to 27% in January 2021. And 8 out of 10 teleworkers wish to continue it for periods varying between one and five days, Dares, Télétravail durant la crise sanitaire, February 2022, n°9.
  40. According to a February 25, 2022 Dares study, according to 27% of companies, the majority of employees aspire to telework more, Activité et conditions d’emploi de la main d’œuvre pendant la crise sanitaire Covid-19 en janvier 2022, February 25, 2022.
  41. Future of Work, Comment travaillera-t-on en 2035 ?,  Onepoint study, March 2022.
  42. Interview J.-E. Ray, « Ne tuons pas l’élan du télétravail », Zevillage.net, 3 September 2020: https://zevillage.net/teletravail/jean-emmanuel-ray-ne-tuons-pas-lelan-du-teletravail/
  43.  Particularly home delivery platforms: Metapack 2022 e-commerce delivery report (online sales are expected to account for 28.2% of total non-food sales by 2025). As for home meal delivery, the market was growing 47% between 2018 and 2020.
  44. The Online Work Index (OLI) accelerated from mid-2020 to May 2021 globally (+44%), which an ILO webinar confirms with 5G deployment.
  45. See, P. Robert-Diard “Au procès Deliveroo, un réquisitoire implacable”, Le Monde, 18 March 2022.
  46.  See above the legislative elements on the negotiation and social dialogue of platforms.
  47. Bertrand Moine, co-founder of Digital Village, proposes the creation of an FRM (freelance relationship management) to provide human support for the “integration of freelancers”, Dares Report, March 2022, op. cit., p. 55.
  48. Law n°2021-1754 of December 23, 2021 on the financing of social security for 2022.
  49. Law n°2022-172 of February 14, 2022 in favor of independent professional activity.
  50. See draft decree on the allowance for self-employed workers, draft decree on the amount of the allowance for self-employed workers, transmitted on March 8, 2022 to the CNNCEFP, Liaisons sociales, March 11, 2022, n°18508.
  51. Prof. Grégoire Loiseau at the Conseil d’Etat conference on December 3, 2021, Les réseaux sociaux, vecteurs de transformation.
  52. Ibid.
  53. “A tired society”, CFDT-Foundation Jean-Jaurès expert committee, Report 26 November 2021.
  54. See the article by Emmanuel Hirsch “une fatigue éthique”, op. cit., p. 11-12.
  55.  See Isabelle Lespinet-Moret’s article “de la fatigue industrielle au burn out”, op. cit., p. 17-18.
  56. See for example C. Cavendish, “It’s time to admit that hybrid is not working”, Financial Times, January 7, 2022 : https://www.ft.com/content/d0df2f1b-2f83-4188-b236-83ca3f0313df ; G. Roussange, “Les salariés zombies, nouveau fléau des PME”, Les Echos, March 22, 2022.
  57. Evaluation of the ordinances of September 22, 2017, France Stratégie, Rapport comité d’évaluation 2021, December 2021.
  58. Environment, value sharing, health, human rights and quality of life at work, and above all training, the fuel of this century.
  59.  “The Big Quit”: more than 4.3 million Americans quit in August 2021 revealed the U.S. Department of Labor on October 13, 2021. 40% in retail, hospitality or personal services. 11 million jobs remained unfilled. An unprecedented situation.
  60. Increase in resignations in mid-2021, particularly among employees in partial activity – Mid-2021, a high level of CDI resignations linked in particular to the decrease in partial activity, Dares publication, 3 November 2021.
  61. Study report, Les nouveaux intermédiaires du Travail B2B, Dares, March 2022 n°27.
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