Employment Grey Zone, Employer Power and Public Space: An Illustration from Uber Case
The article proposes a framework for the interpretation of employment relationship transformations in a context of globalization through the notion of the “Employment Grey Zone”. The notion of the employment grey zone (EGZ), originally coined by the French legal scholar A. Supiot to characterize the convergence between the “states of subordination” of employees and independent contractors, is revisited and analyzed within the broader framework of an “employment relationship with a third party”. This case in point refers to a context of production internationalization where the employer-employee relationship is not just face-to-face, but includes several stakeholders that play a role in structuring and managing this relationship. The proposed definition of the EGZ does not merely point to an institutional flaw in the rule of law, but considers that any “gap with the norm” has become the rule and not the exception. The EGZ is defined here as a “public space”, understood as an area of deliberation where interests and power relations are coordinated and confronted: the result is the formation of a hybrid order of regulation, one which is at once public and private, formal and informal. The notion is a useful tool for perceiving the transformation of employment relationships through a new prism. The example of Uber shows how the issue of employment relating to its drivers cannot be exclusively reduced to the standard juridical paradigm, which would limit the debate to defining them as either employees or independent contractors. The diversity and, also, the fragility of court rulings, their partial and repeatedly provisional character, suggests that the socio-professional situation of the drivers is not only “undecidable” in legal terms. The action of states and other territorial governing bodies, as well as that of civil society, must be taken into account in order to comprehend the system of regulation of the employment relationship.