As the end of the year approaches, the German courts have published a decision providing employers with further clarity on the issue of crowd working.
What is crowd working?
Crowd working is a highly flexible form of working. According to the Federal Ministry of Labour and Social Affairs (BMAS), around 4.8 percent of the German electorate earn their money through “mini-jobs” or tasks sourced through the internet. These crowd workers take on work from companies that is offered to all, for example via apps or on general or specialised network platforms. These tasks generally have to be completed within a short timescale and in accordance with set criteria. The Regional Labour Court (LAG) in Munich has provided guidance on the triangular relationship between the crowdsourcer, the platform operator and the crowd worker (judgement of 04.12.2019, ref. 8 Sa 146/19).
Crowdworkers are not employees
The court held that crowd workers are not employees. An employment contract requires that a worker personally performs work in accordance with instructions. This is generally indicated by the fact that the employee has to follow instructions regarding the time, place and content of their work and is integrated into the employer’s workplace and organisation. In the present case, a crowd worker claimed the existence of an employment relationship with a platform operator, after the operator terminated his access to the app. His tasks, which he had accepted from the app, included taking photographs of petrol stations and markets and forwarding these pictures to the customer in order to allow it to monitor the presentation of its goods there.
The LAG denied the existence of an employment contract between the platform operator and the plaintiff crowd worker. The crowd worker had not been obliged to provide services or accept the tasks offered. His contract with the platform was merely a framework agreement that did not set any binding performance obligations or instruction requirements from the platform.
As a result, the individual is not protected by German employment protection regulations, notwithstanding that the plaintiff earned a substantial part of his living from these tasks and was therefore under financial pressure to accept future work.