Cherry and Aloisi on "Dependent Contractors" in Canada, Italy, and Spain

    As some debate whether to add “dependent contractor” to the set of worker classifications ({employee, independent contractor}) in the US, a new working paper looks to the experience of Canada, Italy, and Spain: Miriam Cherry and Antonio Aloisi, “‘Dependent Contractors’ in the Gig Economy: A Comparative Approach (SSRN).  Here’s the abstract:

In response to worker misclassification lawsuits in the United States, there have been recent calls for the creation of a hybrid category in between employee and independent contractor specifically for the gig economy. However, such an intermediate category is not new. In fact, the intermediate category has existed in many countries for decades, producing successful results in some, and misadventure in others. In this article, we use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In our analysis we focus on a set of questions: Is labour law fundamentally outdated for the digital age? Does the gig economy need its own specialized set of rules, and what should they look like? What role does digitalization and technology play in the casualization of work? We ultimately conclude that workable proposals for a third category must also encompass other forms of precarious employment.

The paper itself surveys the law and legal commentary in Canada, Italy, and Spain.  It finds that Canada’s “dependent contractor” category, which originated in Arthurs (1965), succeeded in “expanding the coverage of laws aimed at ‘employees’ to encompass vulnerable small business and tradespeople." In contrast, Italy “saw systemic arbitrage between the standard employment category and the intermediate category,” which caused confusion and “a movement to strip workers of their rights by misclassifying them downwards.”  Meanwhile, in Spain, the category covers only a “tiny” portion of workers, because of “burdensome requirements and a seventy-five percent dependency threshold to enter the third category.” (p. 3).

 

--Sachin Pandya