Navigating the Legal Maze: Gig Workers' Rights in Occupational Health and Safety

Navigating the Legal Maze: Gig Workers' Rights in Occupational Health and Safety

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Navigating the Legal Maze: Gig Workers' Rights in Occupational Health and Safety

Introduction

Health is a universally cherished aspect of human existence that plays a pivotal role in determining one's overall quality of life. Throughout history, individuals have always been conscientious about their own well-being and that of their loved ones. Notably, good health and safety, stand as significant outcome of advancements in society, economics, and politics. Occupational Health and Safety (OHS), also referred to as Workplace Health and Safety (WHS) or simply workplace safety, is a specialized field dedicated to ensuring the physical and mental welfare of employees within their work environments. Its primary objectives revolve around preventing workplace accidents, injuries, and illnesses, while simultaneously fostering secure and healthy working condition

In recent years, the emergence of online platforms has marked a pivotal economic transformation, mirroring the ongoing trend of a more flexible and contingent labor market, commonly known as the " online gig" economy. This gig economy represents a relatively novel phenomenon that facilitates the convenient connection between consumers and service providers. It is characterized by temporary, short-term, or freelance work arrangements, frequently mediated through digital platforms or mobile applications. Individuals often referred to as "gig workers" or "freelancers" offer their services to individual clients or companies on a flexible and short-term basis.

Conversely, the offline gig economy encompasses individuals employed across various industries, including agriculture, manufacturing, construction, trade, hospitality, transportation, communication, community services, social services, and personal services. This type of gig work can be categorized into two primary groups: Seasonal workers, who participate in economic activities during particular times of the year when demand is high, and their engagement is limited to these specific periods; and casual workers, who are involved in work arrangements where they are compensated on a daily basis, and their tenure does not extend beyond 90 days. They undertake short-term, flexible work arrangements without committing to long-term employment.

The growth of the gig economy in Kenya is attributed to a combination of factors, including technological advancements, evolving preferences in the workplace, and a strong desire for flexibility in employment. Today, examples of gig jobs range from food delivery personnel to graphic designers who offer their services through platforms like Uber or Airbnb. These digital platforms have revolutionized the way people connect to access on-demand services and have provided income opportunities for individual service providers seeking flexible work arrangements. What was once considered an alternative or supplementary form of employment has now evolved into a primary source of income for a substantial portion of the Kenyan workforce, contributing significantly to the reshaping of global labor dynamics.

The classification of workers as employees or independent contractors has been a long-standing issue in the realm of employment laws. This issue has been further complicated by the emergence of the gig economy. With the rise of the gig economy, questions have arisen regarding the rights of individuals engaged in gig work. Traditionally, gig workers were typically categorized as independent contractors rather than employees. However, as the gig economy continues to evolve, it has become evident that these workers exhibit characteristics of both employees and independent contractors. Additionally, some gig workers are advocating for their classification as employees rather than independent contractors, in contrast to the claims made by some companies.

While the gig economy offers various advantages, including increased flexibility for workers and cost savings for businesses, it also presents challenges. One of the most prominent challenges is how the gig economy impacts traditional labor laws. Gig work has been criticized for its lack of social safety nets and other aspects typically associated with traditional forms of employment. Governments around the world are grappling with the task of establishing regulatory frameworks that ensure gig workers have adequate rights and protections while still fostering the innovation that has driven the growth of the gig economy. Kenyan labor law provides numerous protections for workers, including provisions related to occupational safety, minimum wage, social security, and worker compensation.

However, the gig economy poses a challenge to these established protections. This challenge centers around the regulatory question of how to guarantee the occupational health and safety of gig workers. Ensuring the safety of all workers, including those engaged in gig work, is essential. Employers, as applicable, should take necessary steps to safeguard the health and safety of gig workers during the course of their tasks. In Kenya, regulations specifically addressing the gig economy are still in the process of development, and there is currently no dedicated legislation that directly addresses this sector. The absence of specific regulations for the gig economy in Kenya can create challenges for gig workers in terms of fairness, protections, and legal remedies. This paper explores the impact of the gig economy on Kenyan employment law and delves into the legal issues that have emerged in this emerging field, particularly concerning occupational safety.

Occupational Safety Challenges in the Gig Economy: Legal Realities

Digital platforms are undergoing a profound transformation in the world of employment. With just a click, we can order food or services online, particularly within the gig economy, where workers operate on a flexible and often temporary basis. The employment status of gig workers is a central topic of discussion globally. While these platforms provide opportunities for convenient entrepreneurship, they often neglect the precarious livelihoods of the workers. Different employment statuses directly impact social protection, working conditions, and workers' representation. The legal classification of gig workers in each country affects their rights and responsibilities. Workers in economically developing nations frequently face poor working conditions, limited social security, and a high risk of exploitation, lacking the protections and benefits associated with traditional employment.

In Kenya, the gig economy has been prevalent for many years, primarily due to the country's large informal sector, employing a substantial portion of the workforce. This sector encompasses various areas, including driver and rider services, personal and household services, business services, delivery services, professional services, hospitality, and medical care. The offline gig economy, as documented by the Kenya National Bureau of Statistics (KNBS) in its 2019 survey, primarily consists of part-time and casual workers engaged in sectors like agriculture, manufacturing, construction, trade, hospitality, transport, communications, and community services. This "offline" gig work includes seasonal workers operating during specific periods and casual workers who work for short durations, receiving daily payments.

Further,the rapid growth of mobile (32 million users) and internet (8 million users) subscriptions in Kenya has facilitated the emergence of online platforms. These platforms connect gig workers with clients seeking their services, allowing workers to utilize their underutilized resources and convert dormant assets into active capital. Online platforms open up new markets, reduce barriers to entry, foster trust between clients and gig workers, and increase the frequency of transactions. They also provide additional income streams, reducing the instability and uncertainty associated with gig work, and, in some cases, minimize the time spent searching for work opportunities.

In 2019, a report from Mercy Corps estimated that Kenya had approximately 36,500 online gig workers. However, there is compelling evidence to suggest that this number significantly underrepresents the true scale of the gig economy in Kenya. Several factors contribute to this undercounting. Firstly, many online gig workers in Kenya operate under accounts established by individuals who employ multiple others to provide services, making it challenging to account for all involved. Furthermore, some online gig workers intentionally conceal their identities, often for legal and tax-related reasons.

Stakeholders, including policymakers, civil society members, donors, and platform owners, believe that the actual number of gig workers in Kenya is much higher, reaching around 1 million*. They also stress that this number is on a rapid upward trajectory. The Federation of Kenya Employers (FKE) has predicted that in the near future, a growing proportion of the Kenyan workforce will engage in a mix of online and offline gig work, characterized by varying levels of formality and a high degree of flexibility. This contrasts with the declining popularity of traditional, rigid, formal employment.

Generally, the gig economy in Kenya offers several advantages to gig workers. It serves as a buffer against unemployment, fosters increased participation in the labor force, creates economic opportunities, and enhances the productivity of Kenyan youth. Additionally, gig work provides flexibility, allowing some workers to transition into entrepreneurial roles. Gig workers who operate through online platforms often report improved livelihoods due to consistent access to decent jobs, resulting in more stable incomes. Despite these benefits, online gig workers face numerous challenges. They lack safety nets, such as healthcare benefits and pensions, leaving them financially vulnerable. The flexibility of gig work can disrupt work-life balance, sleep patterns, and daily routines, as workers must remain constantly available for gig opportunities. Kenya's current labor laws and regulations are inadequate when it comes to social protection, equal employment opportunities, and labor standards for gig workers. Similar to many other parts of the world, existing policies do not adequately support or protect the growing gig workforce, forcing them to operate in a regulatory gray area.

The OSH Act of 2007, enacted in Kenya, serves as comprehensive national legislation aimed at ensuring workplace safety. Under this act, employers bear the responsibility of creating a safe and healthy work environment that is devoid of recognized hazards capable of causing severe harm or death to their employees. Additionally, the act outlines specific safety standards that employers must adhere to. For individuals engaged in gig work, establishing their classification as either an employee or an independent contractor is pivotal as it directly affects their legal rights and protections. When gig workers are classified as employees, they are entitled to the safeguards provided by the OSH Act and can report any breaches of health and safety regulations. However, it is worth noting that gig workers are frequently categorized as independent contractors, which can curtail their access to certain legal protections. This classification allows gig economy platforms to consider these workers as independent contractors, thus alleviating them from certain legal responsibilities towards these individuals. Consequently, gig workers may encounter difficulties when seeking legal remedies for health and safety violations due to their specific classification.

In the case of O’Connor v Uber Technologies, three drivers asserted that they had been wrongly categorized as independent contractors by Uber. Uber, in response, contended that these drivers were not employees because they exerted minimal control over them. The drivers, however, argued that Uber had significant control over the method and means of providing their services. To determine the drivers' classification, the court employed work status tests and scrutinized the level of control Uber exercised over them. The court's analysis revealed that certain characteristics indicated substantial control by Uber, while others suggested minimal control. This case underscores the source of confusion surrounding the classification of gig workers and the legal implications that arise from such distinctions.

Furthermore, the shift from a two-party working relationship to a three-party arrangement inevitably raises the question of whether gig workers should be categorized as employees. Historically, work associations have primarily been bilateral, involving either a requester and an independent contractor or an employer and an employee. However, in situations where platforms mediate these arrangements, the traditional bilateral relationship evolves into a trilateral agreement involving the work requester, the platform, and the gig worker. As part of the transaction process between the requester and the gig worker, both parties also establish a contract with the platform, which provides the online services facilitating their transaction. Consequently, this blurs the conventional distinctions between employees and independent contractors.

The European Court of Justice introduced its own interpretation of the term "employee," a definition also adopted by the Commission to describe those who qualify as employees within the "collaborative economy." According to this definition, an employment relationship exists when an individual provides services for another person for a certain period, under their direction, and in return for remuneration. This definition revolves around three key elements: a relationship of subordination, the completion of a specific task or activity, and the remuneration for that completed activity. While gig workers are typically compensated monetarily for their services, the aspect of subordination is less straightforward. On one hand, clients assess workers through ratings and reviews, and platforms monitor their acceptance rates and service efficiency.

Logically, the responsibility of determining whether someone is an independent contractor or an employee in Kenya lies with the judiciary, which must apply existing laws to novel cases. However, this process may not necessarily provide clear-cut answers, even within a single country, as different courts may reach contrasting conclusions in distinct but related cases. Nevertheless,the court addressed the issue of unfair employment in the case of Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Ltd and another, emphasizing the importance of considering statutory definitions of an employer and an employee when examining the employment relationship between the parties. These cases are of significant relevance to this research as they illustrate how the courts have dealt with the classification of workers.

Numerous labor unions have been advocating for the reclassification of gig workers as employees, primarily due to the level of control exerted by the gig platforms over these workers. The proposal is to uphold existing labor laws and regulations while granting gig workers the benefits and protections associated with employee status to ensure their safety and well-being. If this approach were adopted, it would necessitate a significant shift in the business models of most gig platforms. They would need to take on the responsibilities of employers, including providing occupational safety measures for gig workers.

France took the lead in responding to the gig economy's growth by amending its labor laws, specifically with the introduction of French Labour Law. This new legislation extended employee rights to gig workers, applying when the platform exercises a substantial degree of control over the worker, as defined by the law. Under this classification, gig workers enjoy protection against workplace accidents and work-related illnesses, along with the right to unionize and engage in collective action.

In the United States, gig workers have the legal recourse to sue most employers for minimum wage and overtime violations under the Fair Labor Standards Act, irrespective of their legal status. The federal Occupational Safety and Health Administration (OSHA) also holds the authority to conduct on-site safety inspections in workplaces. This authority extends to gig workers if they are categorized as employees rather than independent contractors. Determining a worker's classification can be intricate, often contingent on factors such as the level of control exercised by the employer. In cases where gig workers are wrongly classified as independent contractors, they can challenge their status and claim the protections provided to employees under OSHA.

Regarding occupational health and safety standards, the federal OSH Act mandates that employers maintain a hazard-free workplace that does not endanger the health or safety of their employees, including gig workers if classified as employees. In the event of health or safety violations, gig workers can report these issues to relevant authorities, such as OSHA, for investigation. Prior to the OSH Act, workplace safety laws in the United States varied from state to state, allowing employers to choose locations with less stringent safety regulations. However, the passage of the OSH Act standardized safety requirements at the federal level, obliging employers to comply with these standards.

The existing body of literature widely agrees that gig workers face a significant challenge in terms of income replacement when they fall ill or become disabled. These workers, who typically earn irregular and comparatively low incomes, are at risk of financial strain due to unexpected medical expenses. This issue is particularly pronounced in Kenya, where access to health insurance is primarily linked to formal, salaried employment. An international survey conducted by the International Labour Organization (ILO), encompassing both developed and developing economies, discovered that only 60% of gig workers have health insurance coverage. Even more concerning is the inadequate protection against work-related injuries and disabilities, with only 21% and 13% of surveyed gig workers having coverage, respectively. These substantial gaps in coverage pose a pressing challenge to society in terms of providing adequate protection for gig workers.

The majority of these challenges can potentially be mitigated through regulatory measures aimed at ensuring fair and just working conditions for gig workers. Unfortunately, Kenya's existing labor laws, designed primarily for formal employment, do not adequately address the unique needs of gig workers. The ILO recognizes that regulating informal labor presents difficulties in many countries due to incomplete, vague, outdated, or unclear laws that leave room for the exploitation of workers. The absence of a suitable regulatory framework for online informal workers also exposes them to high compliance costs arising from multiple licensing requirements. Furthermore, these workers are susceptible to harassment and unfair working environments.

Kenya's Constitution explicitly asserts that every individual has the right to fair labor practices. It goes on to specify that every worker is entitled to fair compensation, reasonable working conditions, the ability to form, join, or participate in trade unions, and the right to strike. All employment laws must align with these constitutional provisions to ensure that workers' rights to fair labor practices are upheld. The correct classification of workers under employment laws is crucial for safeguarding these constitutional rights. However, the Constitution does not provide a clear definition of who constitutes a "worker," and the existing legislation is insufficient in that it only protects traditional employees. It has been proposed that the ordinary and legal definition of the term "person," which includes both individuals and corporations, should be adopted to address this gap.

Hence, it's imperative for policymakers and government bodies to collect data on the gig economy in Kenya to address the information gap regarding its size and nature. This data will facilitate the development of current labor market policies that align with the status of the labor economy in Kenya, enabling policymakers to categorize gig workers and provide them with labor market protections. An example of this could be establishing a system that offers benefits directly to workers, rather than relying on employers or organizations, as stipulated in the 2007 Employment and Labor Relations Acts of Kenya and Occupational Health and Safety Act. Gig workers are increasingly advocating for revisions in compensation and benefits models, as seen in the United States where Lyft drivers receive discounted healthcare.

Employment contracts should ensure equal protection for all workers, regardless of the type of employment arrangement. Without regulatory changes, freelancers, subcontractors, and piece workers may be excluded from conventional social protection systems. A key recommendation from a recent World Bank report, in partnership with the International Labor Organization (ILO), suggests that countries should extend social and labor protections to individuals engaged in part-time or temporary employment. The primary goal should be equitable treatment for all workers, regardless of their contract type, although this is challenging given that many existing regulations assume traditional salaried positions. Balancing the need for protection with the desire to support entrepreneurial opportunities is crucial. Achieving this balance necessitates engaging in a social dialogue involving all relevant stakeholders.

The Kenyan government should identify and implement strategies to promote gig work as an alternative income source for both employed and unemployed citizens. Civil society organizations and labor unions should offer affordable or free legal advice and representation to gig workers whose rights are are violated and who may lack the means to pursue legal remedies. The Kenyan judiciary should consider creating a dedicated section for gig workers within its Labor and Employment Division to enhance its capacity to efficiently handle disputes arising from gig work.

Conclusion

The emergence of the gig economy in Kenya has posed significant challenges to conventional employment regulations, raising distinctive legal quandaries for lawmakers and legal experts. Labeling gig workers as independent contractors has enabled companies to circumvent the obligation of offering benefits and safeguards to their workers. Consequently, this has spurred demands for the development of a new legal structure designed to cater to the specific needs of gig workers. Given the continuous expansion of the gig economy, it becomes increasingly imperative to establish a legal framework that strikes a delicate balance between the flexibility inherent in gig work and the essential rights and protections owed to workers. Furthermore, it is of paramount importance for gig workers to be aware of their employment classification and to promptly report any violations related to health and safety that they may encounter in the course of their work.