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Menschenrechte im Betrieb

The Roamler CaseA pending decision at the German Federal Labour Court

“Optimize your in-store execution with crowdsourcing. Powered by a Crowd of

thousands of shoppers across Europe, Roamler Retail is your eyes, ears, and hands in every

marketplace.” (www.roamler.com)

Panel II: Litigation strategies and digital platforms, Brussels, 15 Oct 2020



www.menschenrechteimbetrieb.de© RA Dr. Rüdiger Helm, kanzlei huber.mücke.helm Slide 1 of 19



A few facts of the case

• The married plaintiff, born in 1967, signed a framework contract pre-formulated by the crowd sourcing platform Roamler on 6 February 2017 to carry out tasks in the retail division of Roamler. In addition, general terms and conditions apply.

• He has been working for the crowd sourcing platform as RoamlerPro from 4 February 2017 to 10 April 2018 in an undisturbed contractual relationship.

• In the retail division, Roamler offers customers real-time information about product availability, product presentation, product positioning, and store and service quality.

• The micro jobbers carry out small jobs (micro tasks) for money. Roamler calls these micro tasks Tool Checks.

• By 10 April 2018, the plaintiff had completed more than 4,000 tool checks for the platform in just over 14 months.

• The plaintiff worked between 15 and 20 hours per week (excluding on-call times). His average monthly remuneration was € 1,749.34 (plus VAT).

• On 10 April 2018, the Platform deactivated the plaintiff's account after the latter claimed the incorrect non-payment of EUR 10.

• Roamler sees him as an independent entrepreneur. His employee status is disputed.

www.menschenrechteimbetrieb.de Slide 2 of 19© RA Dr. Rüdiger Helm, kanzlei huber.mücke.helm



The allocation of Tool Checks

• The micro jobber downloads the Roamler App and allows the app to access the GPS function on his Smartphone. He sets up a Roamler User Account with his personal data. He sets up a Pay Pal account, which he names in the app for payments.

• He starts with a training phase at the Roamler Level 1 to learn the work. To do this, he carries out Tool Checks free of charge, such as collecting data or taking photos according to Roamler's specifications at a location selected by the platform.

• Once he a micro jobber has qualified, he reaches Roamler Level 2 and is allowed to perform paid jobs. Paid jobs within a radius of 50 km from his current location will then be visible via the app.

• After Roamler has accepted the work order, the remuneration is due.

• A job must be completed within a period of two hours, otherwise it will be offered again on the app.

• The Roamler Level determines how many paid jobs can be booked simultaneously. Following this, the micro jobbers can plan an initial route. By gradually re-booking according to the two-hour rule, they can organise their working day according to Roamler's specifications.




Access to Tool Checks

www.menschenrechteimbetrieb.de Slide 4 of 19

• https://www.roamler.com/en/crowd/how-it-works

© RA Dr. Rüdiger Helm, kanzlei huber.mücke.helm




www.menschenrechteimbetrieb.de Slide 5 of 19

https://www.roamler.com/en/crowd/how-it-works

© RA Dr. Rüdiger Helm, kanzlei huber.mücke.helm




https://www.roamler.com/en/crowd/how-it-works




What comes next

• First, we look at how the plaintiff worked for Roamler.

• Then we look at the product and the production process of Roamler.

• Finally, we draw legal conclusions.




Step-by-step Instruction Shell RBA Tool Check




The Step-by-step Instruction (I of IV)

(1) Are you over 18 years old and willing to be exposed to tobacco / cigarettes during this check? ↗ Yes

(2) Please confirm that you have read and understood the rules of conduct and will abide by them when placing an order.↗ Yes, I have read and understood the rules of conduct.

(3) Did you get permission to do this check?↗ Yes.

(4) What kind of advertising (neon sign on top) is the FMC counter tool equipped with?↗ myblu e-cigarette.

(5) Which products are placed at the bottom of the presentation area of the FMC counter tool?↗ none




The Step-by-step Instruction (II of IV)

(6) Is the FMC counter tool placed near the cash desk?↗ Yes

(7) Please take a photo of the FMC counter tool so that the advertisement (neon sign) and the products placed in it and whether it is placed near the cash desk can be seen. No FMC counter tool available? Then please take an overview photo of the service counter / checkout area and the area in front of the windows so that the defendant can see that there really is no FMC tool placed. If you can't get everything on this photo, you can take another photo right away to photograph the rest of the counter and window area.↗ Photo

(8) If necessary, you can take another photo here. One of the photos must show where the tool is located! If the tool is not available, the complete counter and the area in front of the windows must be visible on your 2 photos, so that the defendant can understand. ↗ Photo




The Step-by-step Instruction (III of IV)

(9) Take a picture of the LCD screens so that you can see which clip is playing. It is best to take a still picture so that you can clearly see which product the clip is for. If several clips are running, you can take up to 4 photos. Make sure that you hold on to all clips that are running on the screens. If no clip is running, please take an overview photo of the area behind the counter / tobacco products. We will ask you to take at least a second photo.↗ Photo

(10)If several clips are running, please take a picture of the next clip running on the LCD screens now. Make sure that you keep all clips running on the screens on serve photos. You can take another photo right away. No LCD screens or no other clips? Then please take an overview photo of the service counter / cash desk area so that the tobacco products can also be seen.↗ Photo




The Step-by-step Instruction (IV of IV)

(11)If necessary, you can now take a third photo of another clip on the LCD screens. Make sure that you keep all the clips running on the screens on your photos (optional).↗ Photo

(12)Which clip, which clips run on the screens? Name all clips that are running on the screens.↗ myblue e-cigarette, IQOS / Heets

(13)Did the staff mention during your check that a visit by the Reemtsma field service or telephone contact is desired? Important: Please do not ask, but only tick yes if the staff at the petrol station said something on their own initiative.↗ No

(14)Please take a horizontal overview photo of the petrol station from the outside so that the name can be recognised.↗ Photo

The plaintiff has worked in this way 4000 times in 14 months.




Description of its workforce by Roamler

https://roamler.com/en/main




Description of its workforce by Roamler

https://www.roamler.com/en/main/how-it-works




What is produced by Roamler?

https://www.roamler.com/en/main/how-it-works




The Roamler digital factory

• Roamler produces a customised analysis tools for its clients. The micro jobber carry out small dependent production steps as part of the production process of Roamler, the Tool Checks. The plaintiff is integrated in the production process governed by Roamler.

• Roamler exercises the right the right of employers to give instructions and tells the micro jobber how, where and when the Tool Check have to be done.– Roamler exercises the instruction with regard to the place of work by determining

• the analogue place where the work has to be done which is a specific shop and • the virtual place of work, which is the digital interface of the virtual factory with which

the products are created.– Roamler exercises the instruction right with regard to the time of work by determining the

period for the execution of the work and the time of its completion.

• The plaintiff is dependent of the virtual place of work. It is necessary for carrying out the work. The virtual workplace is assigned, controlled and mastered by Roamler.

• Roamler controls the micro jobbers its workforce by GPS. It controls and sanctions, in the worst case by deactivating the user account and thus depriving users of his livelihood.

• The crucial question still remains: Can the fact that the micro jobber picks his work from the Roamler App be an argument against an employment relationship?




Micro jobber pick the work from the App

• Roamler distributes the work via the app according to a rummage table method. • If the work is not done in the deadline, it returns to the rummage table.• This is a concept toi offer work on demand, where the notice period is to be ignored.• It is a distribution of the work according to today's technical possibilities, which is even more

effective and economical than an allocation. • Personal dependency is a key factor in the German concept of worker. The economic dependence

of the micro jobber may be obvious. But does personal dependence also exist? I think so. Because technical developments must be taken into account in the overall context. And it is just a “modern” way to organize a production process.

“Such an approach does not extend the concept of employee inadmissibly. It is not a question of moving types of contract which have hitherto been considered to be part of the liberal employment contract into the field of labour law. Rather, the aim is to take a correct view of new types of jobs created by technical development and to correctly classify the corresponding legal relationships in our legal system.”

(German Federal Labour Court, 15.3.1978, 5 AZR 819/76 Rn. 31).




Crowd workers and micro jobbers: Young terms for old familiar? - That depends.

• The company's contract drafting and general terms and conditions are designed as an anticipated negation of labour law. But it cannot depend on the will of the employer. Crucial are the circumstances under which the work has been carried out.

• The acceptance of such practices could undermine labour law whenever there is a possibility of organising work in such a way that those willing to work "pick up", do and deliver the work. An app like the defendant's is a perfect example of how labour law can be circumvented in this way, as it is a basic prerequisite for controlling the supply and demand of labour. A technical device cannot lead to a legal relationship being assessed differently.

• As soon as a work order is accepted, a micro jobber is subject to Roamler's instruction regime.

• Platform work is an organizational form of a production process and a form of workforce management..

• German Federal Labour Court will discuss the plaintiff's employee status on 1st December 2020.




Thank you for your attention

Rethinking Labour Law in the Digitalisation Era

By Dr. Ruediger Helm, Munich/Cape Town

www.menschenrechteimbetrieb.de© RA Dr. Rüdiger Helm, kanzlei huber.mücke.helm

Slide 19 of 19

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