Employment Status in the Gig Economy Global 2020 NRF Publication – Italy

What is the state of law on the status of gig workers today?

When jobs in the gig economy became more common in Italy, gig workers had been initially qualified as “para-subordinate workers”, a special category of self-employed workers whose performance is carried out through a continued and coordinated collaboration with the principal. However, over time, there has been an increasing trend at giving such workers a minimum level of employment protection (i.e. minimum wage; insurance protection etc.).

This gradual trend started from case law, which, after some initial claims, granted gig economy workers with the core employment protection typical of subordinate employees, after holding that their performance – although occasional – is often strictly directed by the employer through a digital platform.

The above trend has been then acknowledged by Italian statutory law, that now considers “para-subordinate workers” (expressly including “riders”), whose performance is in practice organised and directed by the employer as subordinate employees.

What are the grey areas in the law?

Despite the recent legislation, in Italy gig economy workers have not yet been provided with a clear legal classification. Consequently, from a practical standpoint, the assessment of the actual employment status of a gig worker can sometimes be complicated.

Irrespective of the labels used by the parties to define the relationship, the assessment of the individual’s status (i.e. genuine self-employed worker, para-subordinate worker or subordinate employee) is determined by courts on a case-by-case basis.

Therefore, the chances of a self-employed or para-subordinate gig economy worker being re-labelled as a subordinate employee still mostly depends on how the performance is carried out in each  specific case.

Nevertheless, there is a growing trend to encompass gig economy workers within the scope of subordinate employment. In this context, recent case law, having determined that an individual was a subordinate employee, also held that the worker’s disconnection from the digital platform by the employer should be considered equivalent to a verbal dismissal.

What legal developments are expected in the future?

The specific features of the gig workers performance (e.g. discontinuous/occasional performance) has left some outstanding issues, such as those relating to the adoption of proper remuneration criteria (e.g. how to remunerate the waiting time between the single tasks carried out by the gig workers?).

It is felt that a key role could be played by consultation with trade unions, through the possible implementation of the “On-Call Job”, a special kind of intermittent employment contract. However,  this has very limited chances of application due to the lack of a specific collective bargaining agreement introducing and regulating it.