The president fulfilled one of her campaign promises and on October 16, she signed an initiative to reform the Federal Labor Law with the aim of regulating the relationship between digital platforms and the individuals providing services through them. The definition of that relationship and the consequences that arise from it is the crux of the matter.
Digital platforms are a point of connection between a person who requires a service —transportation, sending or receiving an object or product, walking a pet, makeup for attending a social event, etc.— and another person who provides it. That is to say, it is an agreement of wills between individuals who execute a commercial relationship through a third party —the digital platform— which, to that extent, intervenes and participates in the generated resources. Therefore, the relationship that materializes is not of a labor nature.
From the first modification proposed to article 49 of the Federal Labor Law, the concept of 'workers on digital platforms' is used. The initiative, however, is based on a mistaken premise that seeks to fit this business model of the digital economy era within traditional regulatory frameworks for labor.
The relationship of individuals providing services through digital platforms is characterized by two complementary principles: 'autonomy' and 'independence.' Since they do not have an employer, they do not have a subordinate relationship and are individuals providing services on their own account.
Another problematic aspect of the initiative relates to the intention for digital platforms to disclose and explain the functioning of the algorithms through which they operate. Among both individuals, the digital platform acts as the intermediary that connects them and charges for doing so.
Where the initiative is apt and promising is in its orientation towards the design of regulatory schemes that provide social security to individuals providing services through platforms.
Indeed, the Federal Labor Law states that 'a work relationship is understood to be any act that gives rise to it, the provision of personal subordinated work to a person, in exchange for the payment of a salary' (Art. 20). Algorithms are tools that allow for the efficient management of the linkage between applicants and service providers, which are often protected by industrial property.
The key lies in determining what subordination is. On this point, the Supreme Court of Justice of the Nation has ruled on various occasions and has characterized the subordinate relationship based on various elements such as 'the duty of obedience' to 'the direction under the employer's charge' or the provision of 'the means to perform the task (which belong to the employer).' It is not present because the key element of that type of relationship —subordination— is absent.
