Image: A drawing of a smartphone. The phone screen shows a path drawn between two points.
Alanoud Alajmi is an SJD at Penn Law. In her doctoral studies, she pursues her primary scholarly interests that lie in the synthesis of law and technology.
Should Gig Workers’ Legal Victories in Europe Boost Momentum Elsewhere? The Case of Saudi Arabia
A quick internet search of gig workers’ data rights yields thousands of results on data-driven exploitation practices as well as calls for data transparency and more robust data rights.[1] Before discussing the regulation of gig workers’ data rights, it is first necessary to consider two simple questions. Who is a gig worker? And what kind of data do gig platforms collect on workers?
Who Counts as a Gig Worker? And What Kinds of Data Do Gig Platforms Collect on Workers?
Gig workers, also referred to as independent contractors, are individuals who engage with an on-demand company to provide requested services and are compensated for their work.[2] By virtue of their business models, gig platforms collect all sorts of data on gig workers, such as personal demographic data, geographic location records, speed and acceleration data, waiting and actual working times, and ratings and reviews.[3] Such data are essential for the platforms’ algorithmic management (automated decision making) and for exercising control over workers.
Gig workers do not enjoy the protections and benefits that ordinary workers take for granted, such as the right to the national minimum wage and the possibility of employer-provided health insurance. As a result, gig workers around the world have protested the “self-employed” label, arguing that the “limited” flexibility they have in work hours does not amount to self-employment.[4] If they are self-employed, they argue, they should have full access to the consumer data that platforms gather, and the companies should not have the power of dismissal.[5] In response, gig platforms argue that they are not employing the workers because the platforms make their money by taking commissions from workers’ earnings.[6]
To strengthen their legal argument that they are not self-employed, gig workers have filed data subject access requests to gain access to their data as well as an explanation of algorithmic management.[7] Information related to work-based performance classification, such as late arrival, rider cancellation rates, and general attitudes and behavioral notes, run contrary to gig companies’ claim that workers are self-employed and not subject to management control.[8]
Gaining access to these data, therefore, is crucial to hold gig platforms accountable and to bolster gig workers’ arguments in legal actions. However, in the 2021 Worker Info Exchange report,[9] in all of the data subject access requests filed on behalf of the gig workers, “no platform has given a full and proper account of automated personal data processing.”[10] This informational asymmetry between gig workers and platforms has created an ongoing debate in many jurisdictions.[11]
The past year included important gains for gig workers in the realization of their employment and data rights. Courts around the globe have passed several significant judgements classifying gig workers as employees and condemning the lack of data transparency in management of the gig economy. In Europe, for example, the United Kingdom Supreme Court held that Uber drivers should be classified as employees rather than independent contractors and are entitled to all benefits generally provided to full-time employees.[12] In Italy, Garante, the data protection authority, fined Deliveroo and Foodinho for their failure to disclose the workings of their job allocation and performance management algorithms.[13] In the Netherlands, one court ruled in a lawsuit filed against Uber that drivers are covered by collective labor laws.[14]
These major legal victories for gig workers around the globe should boost momentum to strengthen gig workers’ rights elsewhere in the world.
The Gig Economy in Saudi Arabia
Though the gig economy in Saudi Arabia is still in its infancy, it has facilitated a transformational wave. The Kingdom has invested large amounts of venture capital in gig platforms like Sabbar[15] and Marn.[16] In addition, the Saudi Ministry of Labor established Future Work Co. to accelerate the adoption of a gig economy in the Saudi market.[17] As a result, platforms such as Mrsool,[18] HungerStation,[19] and Jahez[20] are rapidly taking over the markets in which they operate and are pushing the gig economy into new sectors.[21]
In line with its thriving digital economy, Saudi Arabia passed its first comprehensive Personal Data Protection Law (PDPL) in September 2021, which went into effect in March 2022.[22] The PDPL creates an array of new rights and imposes requirements on companies processing personal data regardless of whether the company is located in the country. Contrary to the Kingdom’s prior data protection sphere, in which it only had sector-specific privacy laws,[23] the PDPL applies to all sectors.[24]
In the context of gig workers’ data rights, the PDPL applies irrespective of employment status. It provides gig workers with the right to access personal data,[25] and the right to fair and transparent processing of their data. Much of the data collected by gig platforms, such as ratings, falls within the definition of personal data under PDPL.[26] As such, gig workers can request such information and request corrections if it is inaccurate.[27]
However, when it comes to automated decision making, gig workers in Saudi Arabia do not have the right to “obtain human intervention.”[28] This is unlike the EU’s data protection and privacy law, the General Data Protection Regulation (GDPR), which places limits on the use of automated decision making.[29] The result is a barrier to gig workers’ control over work-based performance data.
The Saudi Test for Employment Status
Are gig workers independent contractors by virtue of the “limited” flexibility in choosing work hours, or are they employees because of the level of subordination exercised by the gig economy’s algorithmic management?
Under the Saudi Labor Law, gig workers are neither employed nor self-employed. The law uses a four-pronged test to establish an employer/employee relationship, namely: (a) a worker is a natural person—male or female; (b) who performs work; (c) under the supervision or management of an employer; and (c) the work is paid.[30] The most controversial factor for determining this classification is the issue of who controls the work.
While the Saudi labor law prima facie may appear to categorize gig workers as employees, at present, the Saudi labor courts have ruled that gig workers are self-employed.[31] The cases were decided on the basis of three main reasons: first, gig workers have complete control of their work schedules; second, they own their cars and bear the cost of maintenance; and third, gig companies are merely technological platforms connecting workers with customers. Notwithstanding the importance of these cases, there is no system of judicial precedent in the Kingdom, and the judicial interpretation of the modern “subordination” variable remains to be seen.[32] The question, then, is whether gig workers will be considered full-time, part-time or “flexible” Marn workers. The latter is a new category of work contract recently introduced in the country by the Ministry of Human Resources and Social Development (HRSD) pursuant to Article 27 of the implementing regulation of the Labor Law.[33]
Marn describes itself as a platform that aims to create job opportunities for workers wishing to increase their income.[34] It offers an on-demand hourly basis model, an alternative to the employer-employee model.[35] With this model, both the business, such as Uber, and the gig worker must register with Marn before they are considered Marn workers. In a sense, Marn functions as an outsourced recruiter to the gig economy,[36] but it differs from the regular recruiting agencies in that wages are paid by the gig companies through the Marn platform.[37]
Although recent attention has focused on this Marn category as a possible legal classification for all gig workers, uncertainties remain with respect to its definition and implementation. Most of its requirements apply to gig workers–as long as they do not exceed the ninety-five hours monthly limit (which is almost twenty-four hours in a single week). If, however, workers surpass the hour work limit, Marn considers them full-time employees.
If adopted as a legal category to encompass gig workers, Marn would cover gig workers who work flexible hours, except for those who exceed the time limit.[38] The employer platform is obligated to document the employment contract under Marn and compensate for any work-related injuries, while the worker will enjoy social protection in the form of social insurance. However, Marn workers are not entitled to other employment benefits such as health insurance and sick and paid leaves.[39]
Conclusion
The act of data collection comes with a duty to secure and protect. To recognize this duty, however, a relationship must exist between the parties. The lack of employer-employee relationship makes it difficult for gig workers to establish such duty. Marn seeks to clarify this duty and legally classify gig workers under the new flexible category, but it does not grant the legal employment classification that corresponds to their actual work arrangement. While it offers some employment benefits, such as social insurance, businesses can still choose to opt out of registering at Marn. Indeed, as of April 2022, major gig platforms in Saudi Arabia, such as Uber, Mrsool and HungerStation, are not registered at Marn.[40] As such, the lack of a clear legal classification of gig workers in Saudi Arabia weakens gig workers’ rights.
[1] This article focuses on gig workers who are also employed as independent contractors. See, e.g., Matthew Finnegan, EU ‘gig worker’ rules look to rein in algorithmic management, Computer World (Dec 15, 2021), https://www.computerworld.com/article/3644462/eu-gig-worker-rules-look-to-rein-in-algorithmic-management.html [https://perma.cc/L3YP-J8TH]; David Brancaccio and Rose Conlon, Gig workers pay a human price for being managed by algorithms, Marketplace (Dec 23, 2021), https://www.marketplace.org/2021/12/23/gig-workers-human-costs-being-managed-by-algorithms/ [https://perma.cc/V34G-LH85]; Janine Jackson, To Fight Back, Workers Are Going to Need Access to Data Rights, Fair (Feb 5, 2021), https://fair.org/home/to-fight-back-workers-are-going-to-need-access-to-data-rights/ [https://perma.cc/N3ZU-CX3T]; Gig Workers’ Bill Of Rights, Gig workers united, https://gigworkersunited.ca/gig_workers_bill_of_rights.html [https://perma.cc/VR6M-4TZA]; Maeve Allsup, Erin Mulvaney, and Joyce E. Cutler, Gig Economy Companies Brace for Crucial Year as Challenges Mount, Bloomberg Law (Jan 4, 2022), https://news.bloomberglaw.com/us-law-week/gig-economy-companies-brace-for-crucial-year-as-challenges-mount [https://perma.cc/8R2T-KRJR].
[2] Sarah A. Donovan, David H. Bradley, and Jon O. Shimabukuro, Cong. Rsch. Serv., R44365, What Does the Gig Economy Mean for Workers? 1 (2016) (explaining the difference between gig jobs and traditional freelance jobs. For example, coordination of jobs through an on-demand company reduces entry and operating costs for gig workers (i.e., they have greater flexibility around work hours). The terms placed around gig workers’ use of some tech platforms may further set gig work apart. For example, some on-demand companies discourage providers from accepting work outside the platform from certain clients. This is a potentially important difference between gig work and traditional freelance work because it may limit the gig worker’s ability to build a client base and operate outside the platform.)
[3] Sarah Holder, For Ride-Hailing Drivers, Data Is Power, Bloomberg City Lab (Aug 22, 2019), https://www.bloomberg.com/news/articles/2019-08-22/why-uber-drivers-are-fighting-for-their-data [https://perma.cc/B27S-M89Z].
[4] Aslam v. Uber BV [2016] UKET 2202551/2015, [51-53] (U.K. Emp. Tribunal), aff’d, Uber BV v. Aslam [2017] UKEAT 0056/17 (U.K. Emp. Tribunal) (explaining that although drivers are free to accept or decline trips, an Uber document warns that drivers should at least accept 80% of trip requests to retain their account status).
[5] Natasha Lomas, Uber loses gig workers rights challenge in UK Supreme Court, TechCrunch+ (Feb 19,2021), https://techcrunch.com/2021/02/19/uber-loses-gig-workers-rights-challenge-in-uk-supreme-court/#:~:text=Uber%20has%20lost%20a%20long,are%20workers%2C%20not%20independent%20contractors [https://perma.cc/2AYS-8FF3].
[6] Id.
[7] The term “Data Subject Access Request” was introduced by the General Data Protection Regulation (GDPR). Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), available at http://data.europa.eu/eli/reg/2016/679/oj (last visited May 19, 2022). It refers to the submission by an individual to an entity asking to know what personal information of theirs has been collected and stored as well as how it is being used. Under the GDPR, “a data subject should have the right of access to personal data which have been collected concerning him or her, and to exercise that right easily and at reasonable intervals, in order to be aware of, and verify, the lawfulness of the processing.” GDPR (EU) 2016/679 Recital 63.
[8] Charlie Osborne, Uber drivers demand to see algorithms, data that determines their working lives, ZD Net (July 20, 2020), https://www.zdnet.com/article/uber-drivers-demand-to-see-algorithms-data-that-determines-their-working-lives/ [https://perma.cc/KD63-EHR4].
[9] Worker Info Exchange, Managed by Bots: Data-Driven Exploitation in the Gig Economy 44 (2021), https://5b88ae42-7f11-4060-85ff-4724bbfed648.usrfiles.com/ugd/5b88ae_8d720d54443543e2a928267d354acd90.pdf [https://perma.cc/GZ9U-A2JL].
[10] Id. at 44.
[11] Lomas, supra note 5.
[12] Karla Adam, Britain’s Supreme Court rules Uber drivers are ‘workers’ entitled to minimum wage and paid vacation, The Washington Post (2021), https://www.washingtonpost.com/world/europe/britain-uber-supreme-court-workers/2021/02/19/5f9a0b24-729f-11eb-8651-6d3091eac63f_story.html [https://perma.cc/43T2-YW5J].
[13] Italian Garante Fines Deliveroo 2.5M Euros for Unlawful Processing of Personal Data, Hunton Andrews Kurth LLP (Aug 5, 2021), https://www.huntonprivacyblog.com/2021/08/05/italian-garante-fines-deliveroo-2-5m-euros-for-unlawful-processing-of-personal-data/ [https://perma.cc/5HU8-6UEY]; Italian Regulator Fines Foodinho Over Data Privacy, Competition Policy International (July 6, 2021), https://www.competitionpolicyinternational.com/italian-regulator-fines-foodinho-over-date-privacy/ [https://perma.cc/BT7Z-5LK7].
[14] April Roach and Ellen Milligan, Uber Loses Battle Over Drivers’ Rights in the Netherlands, Bloomberg (2021), https://www.bloomberg.com/news/articles/2021-09-13/uber-loses-battle-over-drivers-rights-in-the-netherlands#:~:text=Uber%20Technologies%20Inc.,a%20local%20collective%20labor%20law [https://perma.cc/NE8A-ZMBU].
[15] Sabbar is a Saudi tech-startup which launched in 2019. They aim “to create technology solutions to boost the recruitment process in the retail, hospitality, and entertainment industry.” About Sabbar, Sabbar, https://sabbar.com/en/ (last visited May 19, 2022).
[16] Marn is a platform that offers hourly-based employment solutions by connecting businesses with Saudi youth “for selected duties using advanced technologies.” What’s Marn, Marn, https://marn.io/?lang=en (last visited May 19, 2022).
[17] Future Work is a government-owned company which operates directly under the Ministry of Human Resources and Development. Future Work, https://futurework.com.sa/en (last visited May 19, 2022).
[18] Mrsool is one of the largest delivery platforms in the Kingdom. About Us, Mrsool, https://mrsool.co/about (last visited May 19, 2022).
[19] HungerStation was the first Saudi food delivery app. About Us, HungerStation, https://hungerstation.com/sa-en/about-us (last visited May 19, 2022).
[20] Jahez is a Saudi restaurant order delivery platform. Jahez, https://www.jahez.net/index-en.html (last visited May 19, 2022).
[21] See, e.g., Turki Alanzi, Prospects of Integrating Gig Economy in the Saudi Arabian Health-care System from the Perspectives of Health-care Decision-makers and Practitioners, J. Healthcare Leadership (2021). See also Future Work, supra note 17 (describing an estimated 11% growth on a monthly basis from Dec 2019 to Aug 2021 in the adoption of freelance certificates.)
[22] The Personal Data Protection Law, implemented by Royal Decree M/19 approving Resolution No.98, Sept. 14, 2021 (‘PDPL’) (Saudi Arabia). The text of the PDPL is available here, in Arabic: https://laws.boe.gov.sa/BoeLaws/Laws/LawDetails/b7cfae89-828e-4994-b167-adaa00e37188/1. For an overview of the PDPL, see Understanding Saudi Arabia’s Personal Data Protection Law (PDPL), Securiti, https://securiti.ai/saudi-arabia-personal-data-protection-law/ [https://perma.cc/M2BT-FFF8].
[23] For more on the prior Saudi privacy framework, see, Noor Al-Fawzan and Omar Elsayed, Data Protection in the Kingdom of Saudi Arabia: A Primer, Latham & Watkins LLP, Middle East & Africa Technology, IP and Sourcing Focus (2013), https://www.lw.com/presentations/Data-Protection-in-the-Kingdom-of-Saudi-Arabia [https://perma.cc/ZKK5-5LNP].
[24] Abdulaziz Al-Bosaily, Masha Ooijevaar, Dino Wilkinson, Saudi Arabia issues Personal Data Protection Law, Clyde & Co (2021), https://www.clydeco.com/en/insights/2021/09/saudi-arabia-issues-personal-data-protection-law [https://perma.cc/4ZUR-LQWN].
[25] PDPL Art. 4(2).
[26] PDPL Art. 1(4).
[27] PDPL Art. 4(3).
[28] On March 10, 2022, the government issued a draft version of executive regulations related to the PDPL. The draft regulations grant, in Article 5, a right to request human intervention only when the controller is using “modern or emerging technology” such as artificial intelligence. The regulations also state that Article 15 (3) grants the right to obtain human intervention when the purpose of collecting personal data results in automated decision making. Draft of the Executive Regulation of Personal Data Protection Law (2022), https://istitlaa.ncc.gov.sa/en/transportation/ndmo/pdpl/Documents/Draft%20of%20the%20Executive%20Regulation%20of%20Personal%20Data%20Protection%20Law%20-%20MARCH%209.pdf [https://perma.cc/V47W-VC8D].
[29] GDPR (EU) 2016/679 § 4 Art. 22.
[30] Labor Law, Art. 2 (2005) (Saudi Arabia).
[31] Id. Art. 2 (stating that a worker is any natural person – male or female – working for an employer and under his management or supervision for a wage, even if said person is not under his direct control).
[32] Abdulaziz Al-Ajlan & Partners in Ass’n with Baker & Mackenzie Ltd, Introduction to the Saudi Legal and Court Systems 1 (2014), https://www.acc.com/sites/default/files/resources/vl/membersonly/Article/1384896_1.pdf [https://perma.cc/YBC8-Z52W].
[33] Saudi Arabia: New Resolution Allows for Part-time Flexible Working Arrangements, L&E Global (Jun. 23, 2020), https://knowledge.leglobal.org/saudi-arabia-new-resolution-allows-for-part-time-flexible-working-arrangements/ [https://perma.cc/3ZF6-45HZ].
[34] Marn, supra note 16.
[35] Flexible Hourly Work, before and now, Marn (2020), https://marn.io/2020/07/11/flexible-hourly-work-before-and-now/?lang=en [https://perma.cc/ZX5Y-T8ZY].
[36] 6 Benefits of Using a Flexible Work Platform to Get Employees, Marn (2022), https://marn.io/2022/03/09/perks-of-hiring-with-marn/?lang=en [https://perma.cc/FN8H-6AWV].
[37] Marn Platform FAQs, Marn, https://marn.io/faq/?lang=en, [https://perma.cc/A549-K6XP].
[38] All You Need to Know about the Saudi Flexible Work Policy, Marn (2020), https://marn.io/2020/08/16/get-to-know-saudi-flexible-work/?lang=en [https://perma.cc/JUL2-FSN6].
[39] Id.
[40] For a list of businesses registered with Marn, see https://marn.io/#monshaat.