Comparative Research on Confirming Labor Relation in the Platform Economy Between China and America

Abstract

With the prosperity of the platform economy, assorted new forms of businesses have emerged, which are seemingly different from traditional employees, have literally emerged. In addition, Chinese labor laws split workers into laborers and non-laborers, only when a worker is a laborer can he or she be governed by labor laws. Thus, whether such workers are laborers has caused a definitional maze in both judicial practice and academia. One of the most representative of new business patterns is the rider of the food delivery platform. This article takes the food delivery rider who best represents one of the new forms of employment as a theme for analysis, and adopts the method of case analysis and comparative research. This paper holds the view that online platform enterprises have the following essential characteristics: online platform enterprises tend to abandon their fixed assets; they take more control of riders with the blessing of algorithms; and they skirt the law to mask real legal relationships. These features all contribute to proving more difficult to determine whether a rider is a laborer. In response to the policy of building harmonious labor relations and to protect riders’ rights they deserve, this essay studies the ABC test established by the California State Supreme Court, by discussing the backdrop and merits of the ABC test, together with the reasons why it can be used for reference, to provide threads for China’s judicial practice.