Cesar Ariel Sánchez – RVHB
April 28th 2022
Los ‘gig workers’ from dominican labor law perspective
The world is currently on a hectic course, characterized by constant innovation and the development of technologies that seek to make production processes more efficient. This pace of life, spurred by the phenomenon of globalization, has originated new ways of doing business that impacts labor force services.
This scenario has led to the beginning of the so-called ‘gig’ economy. The term ‘gig’ comes from the English language and refers to the presentations performed by artists at a specific time. Thus, the concept has been extrapolated to the labor area, consisting of the integration of independent, temporary or “on-demand” employees. These gig workers are hired by companies for short-term work on specific projects, without exclusivity. It is therefore a model of service provision for specific jobs in which flexibility and autonomy in the work are essential.
Certainly, with the proliferation of hybrid work and freelance culture or free market entrepreneurship, there has been a boom of gig workers around the world and the Dominican Republic is not an exception. Therefore, the question arises as to whether, considering our Labor Code, can the relationship between a gig worker and a company that requires its services be considered as labor relationship?
Although the employment contract has different modalities, including the contracting for a definite period or for a specific work or service, which could fit into the previous explanation; the truth is that the so-called gig economy would seem to lack the fundamental element of any labor relationship, which is the subordination and the components that integrate it. Jurisprudence has overseen defining the necessary criteria to determine the existence of legal subordination, highlighting: 1º. The place of work; 2º. Supply of instruments, raw materials, or products; 4. Exclusivity; 5th. Effective direction and control (SCJ. Ruling 0742 of December 20, 2019).
For subordination to exist, and therefore an employment contract, the employer must have the power to direct the personal activity of the worker through guidelines and subject to the criteria mentioned above. Therefore, the very nature of freedom and autonomy of the gig workers may indicate the non-existence of a subordinate relationship.
It should be noted at this point that the figure of the “independent professional” is provided in our Labor Code since its enactment, effectively establishing that this type of contractors is not governed by the labor law. However, considering that for the determination of the existence of an employment contract, the reality of what happens in fact prevails, the rendering of each service must be analyzed in detail to verify that the work performed by a gig worker for a certain company is effectively independent or not.
What would happen, if a gig worker decided to claim labor benefits and acquired rights upon termination of a contract, he/she have had with a company? Technically, the contractual protection system would be maintained from the common law area, in the event of any breach or disagreement between the parties, but without the conditions prevailing in the Labor Code on behalf of subordinate workers. However, each case must be evaluated on a case-by-case basis due to the complexity with which this type of service relationships is developed in practice.
This last assumption becomes even more important if observed that this type of contracting can be done directly, as an independent service provider for a specific task, or under the modality of outsourcing through an outsourcing company.
In any case, the task of analyzing the treatment that local jurisprudence will give in each case to the provision of these services, which certainly are increasing and reflect the current trend that pursues the preeminence of a greater availability of time in the performance of work, to maximize profits, as summarized by the phrase popularized by Steve Jobs that “the most precious resource we have is time”.
*** Russin Vecchi & Heredia Bonetti offers this publication for general information only and should not be considered legal advice for specific cases.
