Written by Antonio Aloisi (I.E. University, Madrid) and Valerio De Stefano (University of Leuven, Belgium)
On May 29, breaking news hit the front pages of the Italian major newspapers. According to these sources, the Milan Tribunal had placed Uber Eats Italy under special administration over alleged gang mastering offences.
[This story is reproduced with permission from La Rivisita il Mulino]
The company’s food delivery business is alleged to have been using small firms to recruit vulnerable migrant workers and asylum seekers, through practices that have been associated with the notorious model of “caporalato” (i.e. “unlawful labour intermediation and exploitation”). Even if the investigation started in 2019, the COVID-19 sanitary crisis seems to have exacerbated the harshness of these work schemes, thus leading the magistrates to intervene by replacing the heads of the local team with a specially appointed managing director. It is worth noting that this measure is allowed in a very limited number of cases, primarily in the context of anti-mafia urgent probes (importantly, however, no charges related to organised crimes were pressed in this case). Uber Italy can now continue to operate under this special administration.
Article 603 bis of the Italian Criminal Code criminalises the intermediary recruitment of “workers on behalf of third parties under exploitative conditions, taking advantage of the workers’ state of need” as well as to “employ, hire or engage workers – including by the means of the intermediation activity referred to above – exploiting them and taking advantage of their state of need”. Several indicators of the existence of an exploitative behaviour are listed in this article. They are: payment of wages constantly and excessively lower than the minimum established by national collective agreements or anyway disproportionately low, relative to the quantity and quality of the work performed; recurrent violation of working time regulations; violation of health and safety regulation; indecent working conditions, surveillance methods or housing conditions.
Uber Italy stated that the platform operated in full respect of the law. After asserting that the company condemns any form of illegal intermediation, the spokesperson added that they “participate actively in the debate around regulation, which [they] believe will give the food delivery sector the necessary legal certainty to prosper in Italy”. Despite the doublespeak aimed at sugar-coating the reality of working in the on-demand economy, however, “legal certainty” is, arguably, undermined precisely by blatant labour and social security regulation elusion practices circumventing labour-related responsibilities to the detriment of workers, partners and competitors. More recently, Uber Eats condemned the “reprehensible and unacceptable treatment of couriers employed by Flash Road City” – one of the firms alleged to have acted as gangmasters for Uber by the Milan Tribunal – and announced both an “internal investigation to clarify responsibilities” and the “willingness to cooperate with the law enforcement authorities”.
The 60-page text of the order (“decreto No. 9/2020”) was immediately released by the Tribunal. If confirmed in the upcoming court hearings the reality of this business model is appalling. The allegations, though, are barely a novelty. More than one year ago, after conducting field research, Professor Paolo Natale wrote a blogpost on the newspaper “Gli Stati Generali” in an attempt to debunk the myth of platform workers being young students looking for small “gigs” to top up their income. Findings revealed that “more than 65% of the interviewees are migrants, […], mainly from African (40%) and Asian (15%) regions. Given the explicable reluctance of many riders to be mapped, it is highly likely that foreigners are in fact even more numerous than those surveyed”. Natale also explained that the interaction that these workers have with their employers is problematic as “almost half of them have little or no knowledge of Italian”, an unsurmountable barrier in understanding contractual terms and non-waivable rights, seeking help to improve their working conditions, joining forces or becoming member of unions or self-organised collectives.
In July 2019, Italian reporter Gea Scancarello covered “Flash Road City”, one of the firms that are now under scrutiny. The owner of the company, operating thanks to a partnership agreement with Uber Italy, explained that his “intermediation agency is supposed to recruit staff for Uber Eats”. The court papers corroborate this incautious self-allegation. According to the magistrates, workers were recruited by the company to work for Uber Eats, they were trained to comply with the standard defined by the food-delivery app and payed on the basis of a per-drop system regardless of kilometres, holiday and night supplement and other bonuses. In particular, through wiretaps and document seizures, it has come to light that many middle managers of Uber Eats put pressure on the owner of the company and were asked by the latter to deactivate workers’ accounts temporarily or permanently to discipline them. The two companies signed a “tech service” agreement. Journalist Giovanna Boursier showed the obstinate efforts to keep piece-rate as a mandatory payment system, not to mention the pervasiveness of algorithmic management.
The “contracts” entered between the gangmaster-firms and riders are also attached to the court order. According to them, the payments indicated on the app were “wrong”, as a flat fee of 3 euro per delivery replaced them. What emerges is that a rather complex system of sanctions was in place, punishing workers by taking away their tips and part of their compensation. The key factor in the assessment replicates the rating implemented by Uber, based on the acceptance and cancellation rates. These critical elements, which at least in theory should not be used to penalise the workers, were shared with “Flash Road City” to facilitate and support its disciplinary power. These practices, according to the magistrates, resulted in high stress and frantic workloads, let alone the very limited autonomy of the riders in deciding if and when to work – “in stark contrast with the contractual terms and conditions”(p. 14). Moreover, far from being “modern” and “flexible”, the internal organisation was based on shifts arranged in line with the needs of platform. The WhatsApp chat describes a bullying, if not violent, relationship between managers and workers.
Contrary to the widespread claim that the app is operating as a mere matchmaker between restaurants and clients (p. 25), Uber is allegedly involved in the recruitment, organisation and monitoring of the fleet of couriers (in)formally engaged by the subcontractor. The practices include the use of private guards controlling the workers or queuing in front of restaurants, last-minute call of sick riders to cover a specific geographical area, training sessions for newly-hired riders and disciplinary measures such as withholding the deposit transferred for the branded lunchbox or deactivating the account for any or no reason. In short, the app was allegedly outsourcing the management of the workforce to the small firm to meet its goals.“Exploitation, intimidation and abuse” are the words used by the investigators. According to the court order, several managers employed by the platform were also fully aware of the system. This was all the more abusive as it leveraged the misery of migrants and refugees who had to commute from peripheral neighbourhoods or from reception centres, could not complain under penalty of being logged out and had to beg to get paid from time to time and according to the capricious temperament of their bosses keeping money from them.
Contrary to much litigation around platform work, thus, this case is not about the contractual classification of workers. Rather, the case at stake is illustrative of disgraceful practices that often go undetected under the glittering surface of the growing platform economy sector, which has been proclaimed an essential activity by decree during the strictest phases of the lockdown period in Italy. The crucial allegation lies in the fact that some Uber Eats managers plan schedules and shifts thanks to the stringent instructions imposed on the couriers by the gangmasters. When it comes to indulging self-proclaimed innovative business models, more attention should indeed be paid to the “behind-the-scene” where disruption is proliferating. Customers craving for convenience and comfort cannot pretend to ignore what is going on under the glittery digital façade. If trade unions and grassroots movements are proactively standing against these practices, responsible employers and lawful labour market intermediaries should also raise their voices against such a blatantly unfair competition. It is good news that public institutions are acting to prevent that a vicious combination of vulnerability and unscrupulousness opens a parallel labour market where erosion of rights and misapplication of social security are the norm.
Antonio Aloise & Valerio De Stefano, “Uber Eats Facing Criminal Charges in Italy. Here’s the Story” Canadian Law of Work Forum (June 8 2020): https://lawofwork.ca/?p=12647